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CONTRIBUTORS: REMEDIAL LAW

Office of the Dean:

Atty. Gemy Lito L. Festin Dean, PUP


REVIEWER
College of Law CONTENTS:

Chapter I General Principles .............. Page 001

Faculty BarOps: Chapter II Jurisdiction .................. Page 004

Chapter III Civil Procedure .............. Page 012


Atty. Maria Christina Gimenez, Atty.
Arnel Mateo, Atty. Judy Lardizabal, Chapter IV Special Proceedings .................. Page 117
Atty. Benzon Judd Cong, Atty. Ronald
Crisanto Mercado and Faculty Club Chapter V Criminal Procedure .............. Page 153

Chapter VI Evidence .................. Page 191

BarOps Core Group:

Jay Salendab, Sylvia Sarmiento,


Romie Rose Alcaraz, Kolleen De
Guzman, Roberto Valerio, Erold John
Beunaflor

Remedial Law Team:

John Ramil Rabe, Khristian Jeff


Episcope, Sylvia Patricia Sarmiento,
Sabrina Herhandez
REMEDIAL LAW REVIEWER Chapter I General Principles

preclude in their retroactive application to pending


I. GENERAL PRINCIPLES actions.

1.1. CONCEPT OF REMEDIAL LAW


Remedial law- branch of law which prescribes the Pg.
method of enforcing the rights and obtaining redress 1.3. RULE-MAKING POWER OF THE 1
for their invasions. SUPREME COURT
Power to promulgate rules of procedure lodged with
Remedial statutes refers to statutes relating to
remedies or modes of procedure, which do not create the Supreme Court: Constitutional basis Sec. 5, Art.
new or take away vested rights, but only operate in VIII, par 5 of 1987 Constitution
furtherance of the remedy or confirmation of rights
already existing. 5.) Promulgate rules concerning the
protection and enforcement of
Mechanics of due process as part of remedial law constitutional rights, pleading, practice, and
procedure in all courts, the admission to the
1. A court or tribunal clothed with judicial practice of law, the integrated bar, and legal
power to hear and determine matters assistance to the under-privileged. Such
before it rules shall provide a simplified and
2. Jurisdiction must be lawfully acquired over inexpensive procedure for the speedy
the person of the defendant or over the disposition of cases, shall be uniform for all
property which is the subject of the courts of the same grade, and shall not
proceeding. diminish, increase, or modify substantive
3. Defendant must be given an opportunity to rights. Rules of procedure of special courts
be heard and and quasi-judicial bodies shall remain
4. Judgment must be rendered upon a lawful effective unless disapproved by the Supreme
hearing Court.

1.3.1 Limitations on the rule-making power of


1.2. SUBSTANTIVE LAW vis--REMEDIAL the Supreme Court
LAW
a. Simplified and inexpensive procedure for
Substantive law creates defines and regulates rights;
speedy disposition of cases
while procedural law prescribes the rules and forms b. They shall be uniform in all courts of same
of procedure in the administration of justice. grade
c. They shall not dismiss, increase, or modify
Substantive law cannot be waived, while procedural substantive rights
law can be waived or subject to agreement of the
parties. 1.3.2. Power of the Supreme Court to amend
and suspend procedural rules
Procedural laws have retroactive application.
It is discretionary upon courts to suspend procedural
They are considered applicable to actions pending procedures for the purpose of justice.
and unresolved at the time of their passage.

Procedural laws and rules are retroactive in that


sense and to that extent. The effect of procedural
statues and rules on rights of a litigant may not
REMEDIAL LAW REVIEWER Chapter I General Principles

1.4. NATURE OF PHILIPPINE COURTS 1.4.4. Courts of original and appellate


jurisdiction
1.4.1. Meaning of a court
A court is one with original jurisdiction when actions
Court is the tribunal clothed with the power and or proceedings are originally filed with it. A court is
Pg.
authority to entertain and resolve legal disputes one with appellate jurisdiction when it has the power
2
between the parties to carry out dispensation of of review over the decisions or orders of a lower
justice in accordance with the law. A judge is a public court.
officer who exercises the power of the court in
dispersion of justice. 1.4.5. Courts of general and special jurisdiction

1.4.2. Court as distinguished from a judge Courts of general jurisdiction are those with
competence to decide on their own jurisdiction and
A judge is a public officer who exercises the power of to take cognizance of all cases, civil and criminal, of a
the court in dispersion of justice. particular nature.

A court is more of a permanent status or existence Courts of special (limited) jurisdiction are those which
while judge is mere temporary. have only a special jurisdiction for a particular
purpose or are clothed with special powers for the
1.4.3. Classification of Philippine courts performance of specified duties beyond which they
have no authority of any kind.
a. First level MTCs
b. Secondary level RTCs and Family Courts 1.4.6. Constitutional and statutory courts
c. Third level Court of Appeals and
Sandiganbayan Constitutional SC
d. Fourth level - Supreme Court
Statutory Court of Appeals, Sandiganbayan, Court
Courts outside the Judicial System of Tax Appeals, Regional Trial Court, Shariah District
Court, Metropolitan Trial Court, Metropolitan Circuit
Tribal courts - This are courts which are exiting under Court, Municipal Circuit Trial Court, Shariah District
the customs and traditions of an indigenous cultural Court
community and are not part of the Philippine Judicial
System. 1.4.7. Courts of law and equity

Decisions of a tribunal based on a compromise may Court of law decides a case according to what the
be enforced or set aside, in and through regular promulgated law is while a court of equity
courts only. adjudicates a controversy according to the common
precepts of what is right and just without inquiring to
Military Courts These are not judicial courts. They the terms of statutes.
are agencies of executive in character. Their decision
are not appealable to the courts but would pass the In Philippines, every court is both equity and law.
reviewing and conferring authority, but the Supreme
Court may exercise its supervision or correcting 1.4.8. Principle of judicial hierarchy
power over the court-martial proceedings when
jurisdictional errors are involved or when there is The principles provides that a higher court will not
grave abuse of discretion. entertain direct resort to it unless the redress cannot
be obtained in the appropriate courts.
REMEDIAL LAW REVIEWER Chapter I General Principles

1.4.9. Doctrine of non-interference or doctrine


of judicial stability
Courts of equal and coordinate jurisdiction cannot
interfere with each others orders. Thus, the RTC has
no power to nullify or enjoin the enforcement of a Pg.
writ of possession issued by another RTC. 3
REMEDIAL LAW REVIEWER Chapter II Jurisdiction

2.2 2. Jurisdiction versus the exercise of jurisdiction

II. JURISDICTION Jurisdiction is the power or authority of the court. The


exercise of this power or authority is the exercise of
Jurisdiction defined as the power of the court to jurisdiction.
hear and decide cases, and to execute judgment Pg.
thereon. It is also the authority to hear and determine 4
2.2 3. Error of jurisdiction as distinguished from error
a cause the right to act in particular case. of judgment

Jurisdiction is lodged with the Court not with the


judge. Error of Jurisdiction Error of Judgment

One where the act One which the court


complained of was may commit in the
issued by the court exercise of its
2.1 OVER THE PARTES
without or in excess of jurisdiction, it includes
jurisdiction errors of procedure or
2.1.1. How jurisdiction over the plaintiff is acquired
mistakes in the courts
findings.
Jurisdiction over the plaintiff is acquired by his filing
of the complaint or petition and payment of requisite
2.2 4. How jurisdiction is conferred and
docket fees. By doing so, he submits himself to the
determined
jurisdiction of the court.
Allegations in the complaint determines the
2.1.2. How jurisdiction over the defendant is jurisdiction
acquired
Determinative of which regular court had jurisdiction
Jurisdiction over the person of the defendant is
would be the allegations of the complaint.
obtained either by a valid service of summons upon
him or by his voluntary submission to the courts
2.2 5. Doctrine of primary jurisdiction
authority.
The principle provides that courts will not resolve a
controversy involving a question which is within the
jurisdiction of an administrative tribunal, especially
2.2 OVER THE SUBJECT MATTER
where the question demands the exercise of the
2.2 1. Meaning of jurisdiction over the subject sound administrative discretion requiring special
matter knowledge, experience and services of the
administrative tribunal to determine the technical
It is the power to deal with the general subject and intricate matters of fact.
involved in the action, and means not simply
jurisdiction of the particular case then occupying the 2.2 6. Doctrine of adherence of jurisdiction
attention of the court but jurisdiction of the class of
Once the court has acquired jurisdiction, that
cases to which the particular case belongs. It is the
jurisdiction continues until the court has done all that
power or authority to hear and determine cases to
it can do in the exercise of that jurisdiction.
which the proceeding is question belongs.
2.2 7. Objections to jurisdiction over the subject
matter

When it appears from the pleadings or evidence on


record that the court has no jurisdiction over the
REMEDIAL LAW REVIEWER Chapter II Jurisdiction

subject matter, the court shall dismiss the same. by the pleadings. The issues tried shall be treated in
Sec.1, Rule 9. all respects as if they had been raised in the pleadings.

Jurisdiction over the subject matter may be raised at


any stage of the proceedings, even for the first time
Pg.
on appeal.
2.4 OVER PROPERTY IN LITIGATION 5

When the court dismisses the complaint for lack of


jurisdiction over the subject matter, it is common This refers to the jurisdiction over the res.
reason that the court cannot remand the case to
How the jurisdiction over the res acquired:
another court with the proper jurisdiction. Its only
power is to dismiss and not to make any other order.
1. By placing it in custodial egis. It is the actual
seizure of the thing
2.2 8. Effect of estoppel on objections to
2. Through legislative authority conferring
jurisdiction
upon it the power to deal with the property
The active participation of a party in a case is or thing within the courts territorial
tantamount to recognition of that courts jurisdiction jurisdiction.
and will bar a party from impugning the courts
jurisdiction. The general rule remains that courts lack
of jurisdiction may be raised at any stage of the
2.5. JURISDICITON OF COURTS
proceedings even on appeal.
What are the classifications of jurisdiction?

General
2.3 OVER THE ISSUES
Special or limited
Original
Jurisdiction over the issues is conferred and
Exclusive
determined by the pleadings of the parties. The Exclusive original
pleadings present the issues to be tried and Appellate
determine whether or not the issues are of fact or Concurrent
law. Delegated
Territorial
Stipulations in pre-trial
General Power of the court to adjudicate all
The parties may also be determined and conferred by controversies except those expressly withheld from
the plenary powers of the court.
stipulation of the parties as when in the pre-trial, the
parties enter into stipulations of facts and documents
RTC is a court of general jurisdiction. A court of
or enter into agreement simplifying the issues of the general jurisdiction is presumed to be acting within its
case. jurisdiction unless contrary is shown.

Failure to object to the presentation of evidence Special or limited One which restricts the courts
jurisdiction only to particular cases and subject to
The parties may also be conferred by waiver or failure such limitations as may be provided by the governing
to object to the presentation of evidence on a matter law. Example, probate proceedings.
not raised in the pleadings. Here the parties try with
their express or implied consent or issues not raised
REMEDIAL LAW REVIEWER Chapter II Jurisdiction

Courts of special jurisdictions:

Sandiganbayan Original jurisdiction of Court of Appeals-


Court of Tax Appeals
Shariah Courts a) Petition for certiorari, prohibition,
Pg.
RTC mandamus, quo warranto, habeas corpus,
6
Family Courts b) Writ of amparo
MTC c) Habeas Data
d) Writ of Continuing Mandamus
Scope of limited jurisdiction has only the e) Writ of Kalikasan
jurisdiction expressly delegated and must appear f) Action for annulment of judgment of RTC
from the record that its acts are within the g) Petition for freeze order or any monetary
jurisdiction. instrument, property, or proceeds, relating
to or involving unlawful activity as defined
Probate court is of limited jurisdiction: under Sec. 3 (j) of RA 9160 as amended by RA
9194.
Approval of the agreement entered other than
judicially approved compromise agreement is not
within its jurisdiction. Original Jurisdiction of RTC, Sec. 21 BP129:

Original power of the court to take judicial a) Actions involving ambassadors, public
cognizance of a case instituted for a judicial action for ministers and consuls;
the first time under the conditions provided by law. b) Over petition for CPMQH.
c) Petitions for Amparo
d) Petition for Habeas Data
Courts that have original jurisdictions:
e) Petition for Continuing Mandamus
SC
CA
Original jurisdiction of Shariah Disctrict Courts, Art
SB
413, Par 2 PD 1083:
RTC
Sharia Courts
a) Petition by mustlims for constitution for
MTC
family home, change of name, and
commitment of insane person to an asylum
b) All other personal or real actions not
Original jurisdiction of SC-
mentioned in par 1d wherin parties are
muslim, except forcible entry and unlawful
Sec. 5, Par 1 Article VII: detainer which shall be in MTC.
c) All special civil actions for interpleader or
a) Over actions involving ambassadors, public declaratory relief wherein the parties are
ministers and consuls Muslims for property involve belongs
b) Over petition for certiorari,probhibition, exclusively to Muslims.
mandamus, quo warranto, habeas corpus
c) Petition for writ of amparo Exclusive The power to adjudicate a case or
d) Petition for habeas data proceeding to the exclusion of all other courts at that
e) Petition for writ of continuing mandamus, stage.
Sec. 2, Rule 8, Part II Rules of Procedure in
Environmental cases Exclusive and original power of the court to take
f) Petition for writ for kalikasan judicial cognizance of a case instituted for judicial
action for the first time under the conditions provided
by law, and to the exclusion of all other courts.
REMEDIAL LAW REVIEWER Chapter II Jurisdiction

Courts that have exclusive and original jurisdictions: registration by Regional Director or
Bureau of Labor Relations
SC 6. Decision of the Bureau of Labor
CA Relations on appeal over order of
SB cancellation of union registration.
7. Decision of the Secretary of Labor Pg.
RTC 7
Sharia Courts on appeal over order of Bureau of
Labor Relations over intra labor
MTC
dispute.

Exclusive orginal jurisdiction of the Supreme Court-


ii. Exclusive original jurisdiction over actions of
annulment of final and executor judgment of RTC
Over petitions for certiorari, prohibition, and
which is governed by Rule 47.
mandamus against judgment, final order and
resolutions of the following:
Exclsuvie orginal jurisdiction of SB ( civil )
a) CA
Over civil cases for forfeiture of illegally acquired
b) SB
c) CTA wealth under RA 1379.
d) COMELEC
e) COA Note Sec. 15, Article IX of Consti providing
f) OMB in Criminal Cases ( Salvador vs Mapa ) imprescriptivity of unlawfully acquired wealth applies
only in civil actions and not to criminal cases.

Exclusive original jurisdiction of CA- Nature of Sandiganbayann is a special court of same


level as CA. Edgar vs Sandiganbayan.
i. Petitions for CPM against:
Exclusive Orginal Jurisdiction of RTC-
a) Decision, final orders and resolution of RTC
b) Decisions, final orders and resolution of Sec. 19 of BP129 as amended by RA 7691-
NLRC [St. Martin Funeral Homes vs NLRC]
c) Decision, final orders of DOLE in its exercise a) Cases wherein the subject is incapable of
of appellate jurisdiction over decision, final precuniary estimation
orders of the following offices: b) Civil actions which involve title, or
1. POEA Admin in exercise of possession of real property or any interest,
adjudicatory function in case of where assessed value exceeds 20k MM/ 50 k
violation of Labor Code, POEA rules OMM, except forcible entry or unlawful
and regulations. detainer which shall be in MTC.
2. Decision of Secretary of Labor over
decision of its duly authorized Note: Metro Manila 17 lGU:
representatives brought on appeal
in case of violation of Caloocan, Las Pias, Makati, Malabon,
apprenticeship agreement which is Mandaluyong, Manila, Marikina,
already final and executor Muntinlupa, Navotas, Paraaque,
3. Decision of NWPC on appeal over Pasay, Pasig, Patero, sQuezon City, San
Wage Order by Tripartite Board Juan, Taguig, Valenzuela
4. Decision over direct or indirect
contempt cases decided by NLRC c) In all actions in admiralty and maritime
5. Decision of Secretary of Labor on jurisdiction where claim exceeds
appeal in case of denial of union 400MM/300 OMM.
REMEDIAL LAW REVIEWER Chapter II Jurisdiction

d) In all matters of probate, testate or g) Complaints for annulment of marriage and


intestate, where gross value of estate declaration of nullity of marriage and those
exceeds 400MM/ 300 OMM. relating to marital status and property
e) IN all actions involving contract of marriage relation of husband and wife,
and marital relations h) Petition for support and acknowledgement
f) In all cases not within the exclusive i) Summary Judicial Proceedings brought Pg.
jurisdiction of any court under Family Code 8
g) In all civil actions and special proceedings j) Petition for Constitution of Family Home
falling within EO jurisdiction of Juvenile and k) Petition for declaration of status of children
Domestic Relations Court and Court of as abandoned, dependent, or neglected
Agrarian Relations as now provided by law. children
h) In all other cases in which the demand, l) Petition for involuntary commitment, or
exclusive of interest, damages of whatever child caring agency or individual or
kind, atty fees, litigation expenses, costs of commitment of disabled child.
value of property exceeds 400k MM / 300k m) Petition for civil forfeiture of monetary
OMM. instrument relating to an unlawful activity or
to a money laundering offenses.

Other cases falling within EO of RTC from special laws


Exclusive original jurisdiction of Shariah District
a) Sec. 5.2 of Securities and Regulations Code Court
RA 8799-
1. Cases involving devices and i. All cases involving custody,
schemes employed by board of guardianship, legitimacy, and filiation
directors, business association, its arising under the code
officers or partnership, amounting ii. All cases involving disposition and
to fraud of misrepresentation settlement of estate of deceased
which is demerital to the interest of Muslims, probate of a will, issuance of
public. letters of administration or
2. Controversies arising out of intra- appointment of administrator or
corproate or partnership relations, executors regardless of nature or
3. Controversies in the e ections and aggregate amount of property
appointment of directors, trustees, iii. Petitions for declaration of absence and
officers or managers of such death and for cancellation or correction
corporations. of entries in the Muslim Registries
4. Petitions of corporation, iv. All actions from customary contract in
partnership or associations to be which parties are Muslims, if they have
declared in state of suspension of not specified the law which shall govern
payments. their relations.
b) RTC acting as Special agrarian court that is v. All petitions for mandamus, prohibition,
petition for determination of just injunction, certiorari, habeas corpus,
compensation for that province. and auxiliary writs and processes in aid
c) Over petition for annulment of judgment of its appellate jurisdiction
over decision and final orders of MTC
d) Civil cases for infringement of Copyright and Exclusive original jurisdiction of MTC-
Unfair Competition under IP Code
e) RTC Acting as family court has jurisdiction i. Just reversed the jurisdiction of RTC as
over petition for guardianship, custody of regards to amounts.
minor, habeas corpus relating to minor
f) Petition for custody of minor, habeas corpus
ii. Cases under Rules on Summary
in relation to the latter
Proceedings-
REMEDIAL LAW REVIEWER Chapter II Jurisdiction

a) Forcible entry and unlawful Special jurisdiction of RTC, Sec. 23 BP 129


detainer
b) All other cases, except probate, The Supreme Court may designate certain branches
where the claim does not exceed of Regional Trial Courts to handle exclusively the
100k OMM / 200 k MM. following special cases:
Pg.
9
a. Criminal cases
iii. Cases under Small Claims- b. Juvenile and domestic relations cases
c. Agrarian Cases
Payment of money where the value of the d. Urban land reform cases which do not fall
claim does not exceed 100k exclusive of cost under the jurisdiction of quasi-judicial
and interst. bodies and agencies
e. Such other special cases as the SC may
Purpose of small claims: No lawyers, formal determine in the interest of speedy and
pleadings, strict legal rules of evidence. It is efficient administration of justice.
designed to function quickly and informally.

Exclusive Original Jurisdiction of Shariah Circuit Special Jurisdiction of MTC, Sec. 35 BP 129
Courts-
a. Petition for habeas corpus and;
i. All civil actions and proceeding between parties b. Application for bail in criminal cases in the
who are Muslims or have been married in province or city where the absent regional
accordance with Article 13 involving disputes trial judge sits.
relating to:

a) Marriage Apellate power and authority conferred upon a


b) Divorce recognized under the Code superior court to rehear and determine causes which
c) Betrothal or breach of contract to have been tried in lower courts, the cognizance which
marriage a superior court takes a case to removed to it, by
d) Customary dower appeal or writ of error from the decision of a lower
e) Disposition or distribution of property court, or the review by superior court of final
upon divorce judgment or order of some lower courts.
f) Maintenance and support and
cosolatary gifts The following have appellate jurisdiction:
g) Restitution of marital gifts
SC
ii. All cases involving disputes relative to CA
communal properties SB
CTA
Special Jurisdiction - RTC
SDC
The following courts have special jurisdiction:
Apellate jurisdiction of the Supreme court [Sec. 5, Par
Regitonal Trial Court 2, Article VIII)-
MTC
i. Review,revise,reverse,modify, or affirm on
appeal or certiorari judgment, as the Rules of
Court may provide, final judgment and orders of
lower courts in:
REMEDIAL LAW REVIEWER Chapter II Jurisdiction

1. All cases in which the constitutionality A question of law exists when there is doubt or
or validity of any treaty, international or controversy as to what law is applicable on certain set
executive agreement, law, PD, of facts. Questions of fact exist when the doubt or
proclaimation, order, instruction, controversy arises as to truth or falsity of the alleged
ordinance, or regulation is in question facts.
2. All cases involving the legality of nay tax, Pg.
impost, assessment, or toll or any pently 10
Appellate Jurisdiction of Court of Appeals- Sec. 9, BP
imposed in relation thereto 129
3. All cases in which the jurisdiction of any
lower court is in issue i. Over judgments, resolutions, orders or award
4. All criminal cases in which the penalty of the following courts or tribunal:
imposed is reclusion perpetua or higher
5. All cases in which only an error or
a) RTC in exercise of its original
question of law is involved
jurisdiction, Rule 41.
b) RTC in exercise of its appellate
jurisdiction Rule 42.
ii. Cases which shall be decided by the Supreme c) Quasi-judicial bodies in exercise of
Court en banc, Article VIII 4(2), Consti- quasi-judicial functions under Rule 43.

a. All cases involving the constitutionality


of a treaty, international agreement or What are these quasi-judicial bodies?
law and,
b. All other cases which under the Rules of
1. Civil Service Commission
Court are required to be heard en banc,
2. Security and exchange commission
including those involving the
3. Office of the President
constitutionality, application, or
4. Land Registration Authority
operation of PD, proclamation, orders,
5. Social Security Commission
instruction, ordinances, and other
6. Civil Aeronautics Board
regulations.
7. Bureau of Patents and Trademarks and
Technology Transfer
8. National Electrification Administrations
Supreme Court may review decisions of the 9. Energy Regulatory Board
lower courts by way of petition for review on 10. National Telecommunication Commission
certiorari under Rule 45. 11. Department of Agrarian Reform
12. Government Service Insurance System
iii. Cases falling under the appellate jurisdiction 13. Employees Compensation Commission
of the Supreme Court- over judgments, infal 14. Agricultural Inventions Board
orders, and resolutions of the following courts: 15. Insurance Commission
16. Philippine Atomic Energy Comission
a. CA under R45. 17. Board of Investments
b. SD 18. Construction Industry Arbitration
c. CTA en banc Commission
d. RTC r45 19. Voluntary Arbitration
e. CA, SB, RTC in petition for writ of 20. Decision of OMB in administrative cases,
Amparo OMB vs Liggayu
f. CA, SB, RTC in petition for habeas data

Note as a rule, only pure questions of law may be a


ground for r45.
REMEDIAL LAW REVIEWER Chapter II Jurisdiction

What are the powers of the Court of Appeals in the Exceptions:


exercise of exclusive and appellate jurisdiction?
1. Where one party is the government or any
Sec. 9(3) par. 2, BP 129 subdivision or instrumentality thereof;
Pg.
a. Try cases and conduct hearings 2. Where one party is a public officer or employee,
11
b. Receive Evidences and the dispute relates to the performance of his
c. Perform any and all acts necessary to resolve official functions;
factual issues raised in cases falling within its
original and appellate jurisdiction, including 3. Offenses punishable by imprisonment exceeding 1
power to conduct new trial and further year or a fine exceeding P5000
proceedings.
4. Offenses where there is no private offended party
Note Rules in the conduct of hearings before the CA
must be continuous and must be completed within 5. Where the dispute involves real properties located
three months, unless extended by the CJ. in different cities or municipalities, unless the parties
thereto agree to submit their differences to amicable
Appellate jurisdiction of Sandiganbayan- settlement by an appropriate lupon

Shall exercise exclusive appellate jurisdiction over 6. Disputes involving parties who actually reside in
final judgment, resolutions, or orders of RTC whether barangays of different cities of municipalities, except
in exercise of their own original jurisdiction or their when such barangay units adjoin each other and the
appellate jurisdiction. Filomena Villanueva vs People,
parties thereto agree to submit their differences to
2011
amicable settlement by an appropriate lupon.

2.6. BARANGAY CONCILLATION When they can go directly to court

Purposes: 1. Where the accused is under detention

1. Reduce the number of court litigations 2. Where the accused has otherwise been deprived of
2. Prevent deterioration of the quality of personal liberty calling for habeas corpus proceedings
justice, brought about by the indiscriminate
filing of cases in court 3. Where actions are coupled with provisional
remedies
General rule:
4. Where the action may otherwise be barred by the
No complaint, petition, action or proceeding involving statute of limitations
any matter within the authority of the lupon shall be
filed or instituted directly in court or any other 2.7 TOTALITY RULE
government office for adjudication, unless there has
been a confrontation between the parties before the Where there are several claims or causes of actions
lupon chairman or the pangkat, and that no between the same or different parties, embodied in
conciliation or settlement has been reached as the same complaint, the amount of the demand shall
certified by the lupon secretary or pangkat secretary be the totality of the claims in all the claims of action,
as attested to by the lupon chairman or pangkat irrespective of whether the causes of action arose out
chairman or unless the settlement has been of the same or different transactions.
repudiated by the parties thereto.
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

Special civil
actions are
III. CIVIL PROCEDURE governed by
the Rules 62-71
suppletory are
3.1. ACTIONS Pg.
the rules on
ordinary civil 12
3.1.1. Meaning of ordinary civil actions
actions.
A civil action is one by which a party sues another for
3.1.4. Civil actions versus special proceedings
the enforcement or protection of a right, or the
prevention or redress of a wrong,
A special proceeding is a remedy by which a party
seeks to establish a status, a right, or a particular fact.
3.1.2. Meaning of special civil actions
Civil actions are based from cause of action while in
Governed by the rules for ordinary civil actions,
special proceedings, it is not based on a cause of
subject to the specific rules prescribed for a special
action except in habeas corpus. Unlike civil actions,
civil action.
special proceedings are initiated through a petition
and may involve only one party
3.1.3. Meaning of criminal actions

A criminal action is one by which the State prosecutes


3.1.5. Personal actions and real actions
a person for an act or omission punishable by law.
Personal action - A personal action is one that is
founded on privity of contract.
Civil Action Criminal Special
Action Proceeding Real actions - Actions affecting title to or possession
of real property, or interest therein
One by which a Is one by Special
3.1.6. Local and transitory actions
party sues which the proceeding is
another for state a remedy by
Local action the venue depends on the location of
enforcement or prosecutes a which a party
protection of a person for an seeks to property.
right, or act or establish a
prevention of a omission status, a right, Transitory action the venue depends on the
wrong. punishable by or particular residence of the parties.
law. fact.
A civil action 3.1.7. Actions in rem, in personam and quasi in
may either Criminal It is governed rem
ordinary or proceedings by Rules 72-
special. Both are governed 109 of Rules Actions in rem action bought against the thing itself
are governed by 110-127 of of court, and and with a purpose of binding the whole world.
by the rules for Revised Rules rules on
ordinary civil on Criminal ordinary civil Actions in personam action directed against
actions, subject Procedure. actions only particular persons and the judgment of which is
to the specific applies in binding only upon the parties impleaded and their
rules suppletory successors in interest
prescribed for character.
special civil Action quasi-in-rem one bought against particular
action. persons but intended to bind the persons who might
have interest in the subject matter.
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

3.1.8. Independent Civil Actions


Determined by Determined by
In the cases provided for in Articles 32, 33, 34 and the the allegations
2176 of the Civil Code, the independent civil action substantive in the
may be brought by the offended party. It shall law pleadings
Pg.
proceed independently of the criminal action and
13
shall require only a preponderance of evidence. Can be taken Not subject to
away by statute of
In no case, however, may the offended party recover statutes of limitations
damages twice for the same act or omission charged limitations like
in the criminal action. prescriptions

Requisites for right of action:

3.2. CAUSE OF ACTION 1. A cause of action


2. Compliance with all conditions precedent
3.2.1. Meaning of cause of action 3. Actions must be instituted by a proper party

Cause of action is the act or omission by which a party 3.2.3. Failure to state a cause of action
violates a right of another.
Failure to state a cause of action is one of the grounds
Elements: for dismissal of the complaint.

1. A right in favor of the plaintiff by whatever


means and under whatever law it arises or is
created;
2. An obligation on the part of the named Failure to State Cause Lack of Cause of Action
defendant to respect or not to violate such of Action
right; and
3. Act or omission on the part of such
1. The remedy is 1. The remedy is
defendant in violation of the right of the
motion to dismiss Demurrer to
plaintiff or constituting a breach of the
under Rule 16. Evidence.
obligation of the defendant to the plaintiff
2. Made before filing 2. Made after the
for which the latter may maintain an action
responsive prosecution rests
for recovery of damages or other
pleading its case
appropriate relief.
3. Nature of dismissal 3. The dismissal is
is without with prejudice.
3.2.2. Right of action versus cause of action
prejudice, remedy Remedy of the
of the plaintiff is to plaintiff is to file an
Right of action Cause of Action file an amended Apeal of dismissal.
Action pleading 4. If DTE is denied, the
4. If MTD is denied, remedy is to
file an answer. present evidence
The remedial Act or A suit to
right of the omission by enforce ones
3.2.4. Test of the sufficiency of a cause of action
plaintiff to which a party right or to
institute an violates the prevent or
The test is whether or not admitting the facts alleged,
action right of redress a
the court could render a valid verdict in accordance
another wrong
with the prayer of the complaint.
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

What is to be considered by the court are the material Misjoinder of cause of action
allegations in the complaint. The court shall not take
cognizance of the external facts. Misjoinder of causes of action is not a ground for
dismissal of an action.
3.2.5. Splitting a single cause of action and its effects
Pg.
Remedy in case of misjoinder of cause of action
14
A party may not institute more than one suit for a
single cause of action. Sec.3, Rule 2. A misjoined cause of action may, on motion of a party
or on the initiative of the court, be severed and
Effect of splitting single cause of action proceeded with separately.

If two or more suits are instituted on the basis of the


same cause of action, the filing of one or a judgment
upon the merits in any one is available as a ground for 3.3. PARTIES TO CIVIL ACTION
the dismissal of the others. Sec. 4, Rule 2.
3.3.1. Real parties-in-interest; indispensable
The ground of dismissal may be based on res judicata parties; representatives as parties; necessary
or litis pendentia. parties; indigent parties; alternative
defendants
3.2.6. Joinder and mis-joinder of causes of action
Who may be parties
A party may in one pleading assert, in the alternative
or otherwise, as many causes of action as he may Only natural or juridical persons, or entities
have against an opposing party. authorized by law may be parties in a civil action. Sec.
1, Rule 3.
Requisites:

a. The party joining the causes of action shall


comply with the rules on joinder of parties; Entities authorize by law to be a patties include:
b. The joinder shall not include special civil
actions or actions governed by special rules; 1. Estate of a deceased person
c. Where the causes of action are between the 2. Political party duly incorporated
same parties but pertain to different venues 3. Registered labor union
or jurisdictions, the joinder may be allowed 4. Partnerships
in the Regional Trial Court provided one of 5. Dissolved corporations concerning suits filed
the causes of action falls within the for or against it within 3 years from
jurisdiction of said court and the venue lies dissolution in connection with winding up of
therein; and its affairs
d. Where the claims in all the causes action are
principally for recovery of money, the Plaintiff - may refer to the claiming party, the
aggregate amount claimed shall be the test counter-claimant, the cross-claimant, or the third
of jurisdiction. (fourth, etc.) party plaintiff.

Non-joinder of causes of action has no legal Defendant - may refer to the original defending party,
consequence. The plaintiff has the discretion whether the defendant in a counter-claim, the cross-
to assert all of his cause of action in one pleading. defendant, or the third (fourth, etc.) party
defendant.

Real parties in interest - A real party in interest is the


party who stands to be benefited or injured by the
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

judgment in the suit, or the party entitled to the avails already parties, or for a complete determination or
of the suit. Unless otherwise authorized by law or settlement of the claim subject of the action. Sec. 8,
these Rules, every action must be prosecuted or Rule 3.
defended in the name of the real party in interest.
Sec. 2, Rule 3. Alternative defendants - Where the plaintiff is
Pg.
uncertain against who of several persons he is
15
Rule in representatives are parties entitled to relief, he may join any or all of them as
defendants in the alternative, although a right to
General rule: Where the action is allowed to be relief against one may be inconsistent with a right of
prosecuted and defended by a representative or relief against the other. Sec. 13, Rule 3.
someone acting in a fiduciary capacity, the
beneficiary shall be included in the title of the case Unknown identity or name of defendant. -
and shall be deemed to be the real property in Whenever the identity or name of a defendant is
interest. Sec. 3, Rule 3. unknown, he may be sued as the unknown owner heir
devisee, or by such other designation as the case may
A representative may be a trustee of an expert trust, require, when his identity or true name is discovered,
a guardian, an executor or administrator, or a party the pleading must be amended accordingly. Sec. 14,
authorized by law or these Rules. Sec 3, Rule 3. Rule 3.

Where the name of the principal need not to be Indigent parties - satisfied that the party is one who
disclosed has no money or property sufficient and available for
food, shelter and basic necessities for himself and his
An agent acting in his own name and for the benefit family. Sec. 21, Rule 3.
of an undisclosed principal may sue or be sued
without joining the principal except when the Rule in indigent parties Sec. Rule 3.
contract involves things belonging to the principal.
A party may be authorized to litigate his action, claim
REMEDY: or defense as an indigent if the court, upon an ex
parte application and hearing.
If the complaint was prosecuted not in the name of
real party in interest, the same can be dismissed for Such authority shall include an exemption from
failure to state cause of action.
payment of docket and other lawful fees, and of
transcripts of stenographic notes which the court may
Indispensable parties - Parties in interest without
order to be furnished him. The amount of the docket
whom no final determination can be had of an action
and other lawful fees which the indigent was
shall be joined either as plaintiffs or defendants. Sec.
exempted from paying shall be a lien on any judgment
7, Rule 3.
rendered in the case favorable to the indigent, unless
the court otherwise provides.
The presence of indispensable parties is a condition
for the exercise of juridical power and when an
indispensable party is not before the court, the action Any adverse party may contest the grant of such
authority at any time before judgment is rendered by
should be dismissed.
the trial court. If the court should determine after
Although as a general rule, the joinder of parties is hearing that the party declared as an indigent is in
permissive, it is compulsory with respect to fact a person with sufficient income or property, the
indispensable parties. proper docket and other lawful fees shall be assessed
and collected by the clerk of court. If payment is not
Necessary parties A necessary party is one who is made within the time fixed by the court, execution
not indispensable but who ought to be joined as a shall issue or the payment thereof, without prejudice
party if complete relief is to be accorded as to those to such other sanctions as the court may impose
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

3.3.2. Compulsory and permissive joinder Neither misjoinder nor non-joinder of parties is
of parties ground for dismissal of an action.

Rule on compulsory joinder of parties Parties may be dropped or added by order of the
court on motion of any party or on its own initiative
Pg.
Parties in interest without whom no final at any stage the action and on such terms as are just.
16
determination can be had of an action shall be joined
either as plaintiffs or defendants. NOTE: If the plaintiff fails to comply with the orders
of the court for joinder of party, the same may be
Rule on permissive joinder of parties dismissed under Rule 17.

All persons in whom or against whom any right to Any claim against a misjoined party may be severed
relief in respect to or arising out of the same and proceeded with separately Sec. 11, Rule 3.
transaction or series of transactions is alleged to exist,
whether jointly, severally, or in the alternative, may, Unwilling co-plaintiff
except as otherwise provided in these Rules, join as
plaintiffs or be joined as defendants in one complaint, If the consent of any party who should be joined as
where any question of law or fact common to all such plaintiff can not be obtained, he may be made a
plaintiffs or to all such defendants may arise in the defendant and the reason therefor shall be stated in
action; but the court may make such orders as may be the complaint. Sec. 10, Rule 3.
just to prevent any plaintiff or defendant from being
embarrassed or put to expense in connection with 3.3.4. Class suit
any proceedings in which he may have no interest.
Sec. 6, Rule 3. Class suit - When the subject matter of the
controversy is one of common or general interest to
3.3.3. Non-joinder of necessary parties to be many persons so numerous that it is impracticable to
pleaded ;Misjoinder and non-joinder of parties join all as parties, a number of them which the court
finds to be sufficiently numerous and representative
Non-joinder of necessary parties to be pleaded as to fully protect the interests of all concerned may
sue or defend for the benefit of all. Sec. 12, Rule 3.
Whenever in any pleading in which a claim is asserted
a necessary party is not joined, the pleader shall set Requisites or class suit:
forth his name, if known, and shall state why he is
omitted. Should the court find the reason for the 1. the subject matter of controversy is one of
omission unmeritorious, it may order the inclusion of common or general interest to many
the omitted necessary party if jurisdiction over his persons;
person may be obtained. 2. the parties affected are so numerous that it
is impracticable to bring them all to court;
The failure to comply with the order for his inclusion, and
3. the parties bringing the class suit are
without justifiable cause, shall be deemed a waiver of
sufficiently numerous or representative of
the claim against such party.
the class and can fully protect the interests
of all concerned.
The non-inclusion of a necessary party does not
prevent the court from proceeding in the action, and
the judgment rendered therein shall be without Class suit Citizen Suit Derivative Taxpayers
prejudice to the rights of such necessary party. Sec. 9, Suit suit
Rule 3.
When the Suit filed Suit filed A suit
Misjoinder and non-joinder of parties subject by the by brought by
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

matter of the citizen of stockholde a taxpayer Whenever a party to a pending action dies, and the
controversy the r or for illegal claim is not thereby extinguished
is one of Philippines member expenditur
common or for their may bring e of It shall be the duty of his counsel to inform the court
general generation an action taxpayers within thirty (30) days after such death of the fact Pg.
interest to as well as in the money. thereof, and to give the name and address of his legal 17
many generation name of a representative or representatives. Failure of counsel
persons so s yet corporatio to comply with his duty shall be a ground for
numerous unborn n or disciplinary action.
that it is associatio
impracticable n for The heirs may be substituted
to join all as inaction of
parties, a the The heirs of the deceased may be allowed to be
number of officers of substituted for the deceased, without requiring the
them which such appointment of an executor or administrator and the
the court corporatio court may appoint a guardian ad litem for the minor
finds to be n or heirs.
sufficiently associatio
numerous n. The court shall forthwith order said legal
and representative or representatives to appear and be
representativ substituted within a period of thirty (30) days from
e as to fully notice.
protect the
interests of If no legal representative, remedy of the opposing
all concerned
party
may sue or
defend for If no legal representative is named by the counsel for
the benefit of the deceased party, or if the one so named shall fail
all. to appear within the specified period, the court may
order the opposing party, within a specified time to
Any party in interest have the right to intervene in procure the appointment of an executor or
class suit administrator for the estate of the deceased and the
latter shall immediately appear for and on behalf of
Any party in interest shall have the right to intervene
the deceased. The court charges in procuring such
to protect his individual interest. Sec. 12, Rule 2.
appointment, if defrayed by the opposing party, may
be recovered as costs.
3.3.5. Suits against entities without juridical
personality Remedy if a party becomes incompetent or
incapacitated
When two or more persons not organized as an entity
with juridical personality enter into a transaction, Upon motion with notice, the court may allow the
they may be sued under the name by which they are action to be continued by or against the incompetent
generally or commonly known. or incapacitated person assisted by his legal guardian
or guardian ad litem.
In the answer of such defendant, the name and
addresses of the persons composing said entity must Transfer of interest
all be revealed. Sec. 15, Rule 3.
In case of any transfer of interest, the action may be
3.3.6. Effect of death of party-litigant continued by or against the original party, unless the
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

court upon motion directs the person to whom the defendant/responde the court and
interest is transferred to be substituted in the action nt subject matter
or joined with the original party. Sec. 19, Rule 3. 4. May be stipulated by 4. Cannot be fixed
the agreement of the by the parties
Action and contractual money claims parties on exclusivity because it is Pg.
of venue conferred by law 18
When the action is for recovery of money arising from 5. Not a ground for 5. Ground for motu
contract, express or implied, and the defendant dies motu propio propio dismissal
before entry of final judgment in the court in which dismissal, except in
the action was pending at the time of such death, it summary procedure
shall not be dismissed but shall instead be allowed to and small claims.
continue until entry of final judgment. A favorable
judgment obtained by the plaintiff therein shall be
enforced in the manner especially provided in these
Rules for prosecuting claims against the estate of a 3.4.2. Venue of real actions
deceased person. Sec. 20, Rule 3.
Actions affecting title to or possession of real
When notice to Solicitor General is necessary property, or interest therein, shall be commenced
and tried in the proper court which has jurisdiction
In any action involving the validity of any treaty, law, over the area wherein the real property involved, or
ordinance, executive order, presidential decree, rules a portion thereof, is situated.
or regulations, the court, in its discretion, may require
the appearance of the Solicitor General who may be
Forcible entry and detainer actions shall be
heard in person or a representative duly designated
commenced and tried in the municipal trial court of
by him. Sec. 22, Rule 3. the municipality or city wherein the real property
involved, or a portion thereof, is situated. Sec. 1, Rule
4.
3.4. VENUE 3.4.3. Venue of personal actions
Venue the geographical area where the case should
All other actions may be commenced and tried:
be filed and tried.
1. where the plaintiff or any of the principal
3.4.1. Venue versus jurisdiction
plaintiffs resides, or
2. where the defendant or any of the principal
Venue Jurisdiction defendants resides, or in the case of a non-
resident defendant where he may be found,
at the election of the plaintiff. Sec. 2, Rule 4.
1. The geographical 1. Authority of the
place where the case courts to hear 3.4.4. Venue of actions against non-residents
should be filed and and determine
tried. cases and If any of the defendants does not reside and is not
2. Matter of procedural implement its found in the Philippines, and the action affects the
law decision personal status of the plaintiff, or any property of said
3. Establishes 2. Matter of defendant located in the Philippines, the action may
relationship between substantive law be commenced and tried:
plaintiff/petitioner 3. Establishes
and relation between 1. In the court of the place where the plaintiff
resides, or
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

2. In the court of the place here the property or Initiatory pleading a pleading that initiates an
any portion thereof is situated or found. Sec. action.
3, Rule 4.
Responsive pleading a pleading that responds to the
What kinds of action this applies: pleading of adverse party.
Pg.
19
1. Action affects the personal status of the 3.5.1. Kinds of pleadings
plaintiff
2. Any property of said defendant located in a) Complaint - The complaint is the pleading alleging
the Philippines the plaintiff's cause or causes of action. The names
and residences of the plaintiff and defendant must be
3.4.5. When the rules on venue do not apply stated in the complaint.

1. In those cases where a specific rule or law b) Answer - An answer is a pleading in which a
provides otherwise; or defending party sets forth his defenses.
2. Where the parties have validly agreed in
writing before the filing of the action on the i. Negative defenses - is the specific denial of
exclusive venue thereof. Sec. 4, Rule 4. the material fact or facts alleged in the
pleading of the claimant essential to his
3.4.6. Effects of stipulations on venue cause or causes of action.

If the stipulation is restrictive, the suit may be filed ii. Negative pregnant - It is a form of
only in the place agreed upon by the parties. It must negative expression which carries with it an
be reiterated and made clear that under Rule 4, the affirmation or at least an implication of some
general rules on venue of actions shall not apply kind favorable to the adverse party. It is a
where the parties, before the filing of the action, have denial pregnant with an admission of the
validly agreed in writing on an exclusive venue. substantial facts alleged in the pleading.

iii. Affirmative defenses - is an allegation of


a new matter which, while hypothetically
3.5. PLEADINGS admitting the material allegations in the
pleading of the claimant, would nevertheless
Pleadings - are the written statements of the
prevent or bar recovery by him.
respective claims and defenses of the parties
submitted to the court for appropriate judgment It includes:

Note A motion is not a pleading because it is an


a. fraud,
application for relief other than by a pleading. b. statute of limitations,
c. release,
Pleadings allowed under the rules
d. payment,
e. illegality,
The claims of a party are asserted in a complaint,
f. statute of frauds,
counterclaim, cross-claim, third (fourth, etc.)-party
g. estoppel,
complaint, or complaint-in-intervention.
h. former recovery,
The defenses of a party are alleged in the answer to i. discharge in bankruptcy,
j. and any other matter by way of
the pleading asserting a claim against him.
confession and avoidance.
An answer may be responded to by a reply
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

c) Counterclaims - A counterclaim is any claim which d) Cross-claims - is any claim by one party against a
a defending party may have against an opposing co-party arising out of the transaction or occurrence
party. that is the subject matter either of the original action
or of a counterclaim therein. Such cross-claim may
i. Compulsory counterclaim - is one which, include a claim that the party against whom it is
Pg.
being cognizable by the regular courts of asserted is or may be liable to the cross-claimant for 20
justice, arises out of or is connected with the all or part of a claim asserted in the action against the
transaction or occurrence constituting the cross-claimant.
subject matter of the opposing party's claim
and does not require for its adjudication the e) Third (fourth, etc.) party complaints - A third
presence of third parties of whom the court (fourth, etc.) party complaint is a claim that a
cannot acquire jurisdiction.. defending party may, with leave of court, file against
a person not a party to the action, called the third
Such a counterclaim must be within the (fourth, etc.) party defendant for contribution,
jurisdiction of the court both as to the indemnity, subrogation or any other relief, in respect
amount and the nature thereof, except that of his opponent's claim
in an original action before the Regional Trial
Court, the counter-claim may be considered Answer to third (fourth, etc.)party complaint.
compulsory regardless of the amount.
party defendant may allege in his answer his
ii. Permissive counterclaim - is one which, defenses, counterclaims or cross-claims, including
being cognizable by the regular courts of such defenses that the third (fourth, etc.) party
justice, does not arises out of or is connected plaintiff may have against the original plaintiff's claim.
with the transaction or occurrence In proper cases, he may also assert a counterclaim
constituting the subject matter of the against the original plaintiff in respect of the latter's
opposing party's claim and does not require claim against the third-party plaintiff.
for its adjudication the presence of third
parties of whom the court cannot acquire f) Complaint-in-intervention a complaint filed, with
jurisdiction. leave of court, by a person who has a legal
interest in the matter in litigation, or in the success of
iii. Effect on the counterclaim when the either of the parties, or an interest against both, or is
complaint is dismissed - If a counterclaim so situated as to be adversely affected by a
has already been pleaded by the defendant distribution or other disposition of property in the
prior to the service upon him of the custody of the court or of an officer thereof may, with
plaintiffs motion to dismiss, and the court leave of court. Sec. 1, Rule 19.
grants the said motion to dismiss, the
dismissal shall be limited to the complaint. g) Reply A reply is a pleading, the office or function
Sec. 2, Rule 17 of which is to deny, or allege facts in denial or
avoidance of new matters alleged by way of defense
Rule in bring in new parties in the answer and thereby join or make issue as to
such new matters. If a party does not file such reply,
When the presence of parties other than those to the all the new matters alleged in the answer are deemed
original action is required for the granting of controverted.
complete relief in the determination of a
counterclaim or cross-claim, the court shall order If the plaintiff wishes to interpose any claims arising
them to be brought in as defendants, if jurisdiction out of the new matters so alleged, such claims shall
over them can be obtained. Sec. 12, Rule 6 be set forth in an amended or supplemental
complaint. Sec. 10, Rule 6.
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

Reply is a responsive pleading. affidavits, or any 4. Petition for relief


other paper; from judgment;
3.5.2. Pleadings allowed in small claim cases and 6. Memoranda; 5. Motion for
cases covered by the Rules on Summary Procedure 7. Petition for extension of time
certiorari, to file pleadings, Pg.
mandamus, or affidavits or any 21
Pleadings allowed
prohibition against other paper;
any interlocutory 6. Memoranda;
Small Claims Summary Procedure order issued by the 7. Petition for
court; certiorari,
8. Motion to declare mandamus, or
the defendant in prohibition against
Verified Statement of Complaint
default; any interlocutory
Claims, (Form 1-SCC)
Compulsory counter- 9. Dilatory motions order issued by the
Permissive counter- claim pleaded in the for postponement; court;
claim as long as within answer 10. Reply; 8. Motion to declare
the scope of small 11. Third-party the defendant in
claims Cross-claim pleaded in complaints; and default;
the answer 12. Interventions. 9. Dilatory motions
Response with or for postponement;
without compulsory Answers thereto 10. Reply;
counter-claim 11. Third party
complaints;
12. Interventions.

Note pleadings under Summary Procedure shall be


Prohibited pleadings and motions verified.

3.5.3. Parts of a pleading


Small Claims Summary Procedure
a) Caption
1. Motion to dismiss 1. Motion to dismiss
the complaint the complaint or to The caption sets forth the name of the court, the title
except on the quash the of the action, and the docket number if assigned.
ground of lack of complaint or
jurisdiction; information except The title of the action indicates the names of the
2. Motion for a bill of on the ground of parties. They shall all be named in the original
particulars; lack of jurisdiction complaint or petition; but in subsequent pleadings, it
3. Motion for new over the subject shall be sufficient if the name of the first party on
trial, or for matter, or failure each side be stated with an appropriate indication
reconsideration of to comply with the when there are other parties.
a judgment, or for preceding section;
reopening of trial; 2. Motion for a bill of b) Signature and address
4. Petition for relief particulars;
from judgment; 3. Motion for new Every pleading must be signed by the party or counsel
5. Motion for trial, or for representing him, stating in either case his address
extension of time reconsideration of which should not be a post office box.
to file pleadings, a judgment, or for
opening of trial;
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

c) Verification and certification against forum (b) if there is such other pending action or
shopping claim, a complete statement of the present
status thereof; and
Rule on verification
(c) if he should thereafter learn that the
Pg.
Except when otherwise specifically required by law or same or similar action or claim has been filed
22
rule, pleadings need not be under oath, verified or or is pending, he shall report that fact within
accompanied by affidavit five (5) days therefrom to the court wherein
his aforesaid complaint or initiatory pleading
All initiatory pleadings shall be verified. has been filed.

As a rule, responsive pleadings need not to be All initiatory pleadings need to have certification
verified. Exceptions: against forum shopping.

1. Answer to allegations of usury in a complaint As a rule, responsive pleadings need not to have
2. Answer based on actionable document certification against forum shopping
3. Answer to written interrogatories
4. Answer to interrogatories to parties Except:
5. Answer to written request for admission
6. Answer in Summary Proceedings 1. Answer with Permissive Counterclaim
7. Response in Small claims 2. Answer with Permissive Counter
Counterclaim
How verification is made. 3. Answer with Cross-claim

A pleading is verified by an affidavit that the affiant Non-compliance with certification of Non-Forum
has read the pleading and that the allegations therein Shopping
are true and correct of his knowledge and belief.
Failure to comply with the foregoing requirements
A pleading required to be verified which contains a shall not be curable by mere amendment of the
verification based on "information and belief", or complaint or other initiatory pleading but shall be
upon "knowledge, information and belief", or lacks a cause for the dismissal of the case without prejudice,
proper verification, shall be treated as an unsigned unless otherwise provided, upon motion and after
pleading. hearing.

A verification may be signed by the counsel or The submission of a false certification or non-
plaintiff. compliance with any of the undertakings therein shall
constitute indirect contempt of court, without
Certification against Forum Shopping prejudice to the corresponding administrative and
criminal actions.
The plaintiff or principal party shall certify under oath
in the complaint or other initiatory pleading asserting Willful non-compliance
a claim for relief, or in a sworn certification annexed
thereto and simultaneously filed therewith: If the acts of the party or his counsel clearly constitute
willful and deliberate forum shopping, the same shall
(a) that he has not theretofore commenced be ground for summary dismissal with prejudice and
any action or filed any claim involving the shall constitute direct contempt, as well as a cause for
same issues in any court, tribunal or quasi- administrative sanctions
judicial agency and, to the best of his
knowledge, no such other action or claim is NOTE: Only the plaintiff can sign the certification
pending therein; against forum shopping. The counsel cannot sign it.
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

Exception: If the plaintiff is a corporation and the 3.5.4. Allegations in a pleading


counsel is duly authorized.
In general
i. Requirements of a corporation executing
the verification/certification of non-forum Every pleading shall contain in a methodical and
Pg.
shopping logical form, a plain, concise and direct statement of
23
the ultimate facts on which the party pleading relies
It may be executed by properly authorized for his claim or defense, as the case may be, omitting
persons. the statement of mere evidentiary facts. Sec. 1, Rule
8.
This person may be the lawyer of a
corporation. As long as he is duly authorized a) Manner of making allegations
by the corporation and has personal
knowledge of the facts required to be i. Condition precedent - In any pleading a
disclosed in the certification against forum general averment of the performance or
shopping, the certification may be signed by occurrence of all conditions precedent shall
the authorized lawyer. National Steel Corp. be sufficient.
vs. CA, 388 SCRA 85
ii. Fraud, mistake, malice, intent,
d) Effect of the signature of counsel in a pleading knowledge and other condition of the mind,
judgments, official documents or acts - In all
Effect of signature of the counsel averments of fraud or mistake the
circumstances constituting fraud or mistake
The signature of counsel constitutes a certificate by must be stated with particularity. Malice,
him that he has read the pleading; that to the best of intent, knowledge, or other condition of the
his knowledge, information, and belief there is good mind of a person may be averred generally
ground to support it; and that it is not interposed for
delay. b) Pleading an actionable document

Actionable document a document from which the


Effect of unsigned pleading
action or defense arises.
An unsigned pleading produces no legal effect.
Whenever an action or defense is based upon a
However, the court may, in its discretion, allow such
written instrument or document,
deficiency to be remedied if it shall appear that the
same was due to mere inadvertence and not intended
1. The substance of such instrument or
for delay.
document shall be set forth in the pleading
2. The original or a copy thereof shall be
Deliberate filing of unisigned pleading
attached to the pleading as an exhibit, which
Counsel who deliberately files an unsigned pleading, shall be deemed to be a part of the pleading,
or said copy may with like effect be set forth
or signs a pleading in violation of this Rule, or alleges
scandalous or indecent matter therein, or fails in the pleading.
promptly report to the court a change of his address,
How to contest such documents
shall be subject to appropriate disciplinary action
1. The adverse party, under oath specifically
denies them, and
2. Sets forth what he claims to be the facts,
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

Effect if failed to contest under oath twenty (20) days after the service of the pleading
upon him, or upon the court's own initiative at any
The genuineness and due execution of the instrument time, the court may order any pleading to be stricken
shall be deemed admitted out or that any sham or false, redundant, immaterial,
impertinent, or scandalous matter be stricken out
Pg.
Exception to the rule on under oath denial therefrom. Sec. 12, Rule 8 24

But the requirement of an oath does not apply when 3.5.5. Effect of failure to plead
the adverse party does not appear to be a party to the
instrument or when compliance with an order for an a) Failure to plead defenses and objections
inspection of the original instrument is refused.
Defenses and objections not pleaded either in a
c) Specific denials motion to dismiss or in the answer are deemed
waived.
Absolute denial - A defendant must specify each
material allegation of fact the truth of which he does This is also called omnibus motion rule.
not admit and, whenever practicable, shall set forth
the substance of the matters upon which he relies to Exceptions:
support his denial.
1. When it appears from the pleadings or the
Partial denial - Where a defendant desires to deny evidence on record that the court has no
only a part of an averment, he shall specify so much jurisdiction over the subject matter,
of it as is true and material and shall deny only the 2. That there is another action pending
remainder. between the same parties for the same
cause
Denial by disavowal of knowledge- Where a 3. That the action is barred by a prior judgment
defendant is without knowledge or information or by statute of limitations, the court shall
sufficient to form a belief as to the truth of a material dismiss the claim.
averment made to the complaint, he shall so state,
and this shall have the effect of a denial b) Failure to plead a compulsory counterclaim and
cross-claim
Effect of failure to make specific denials
A compulsory counterclaim, or a cross-claim, not set
Material averment in the complaint, other than those up shall be barred
as to the amount of unliquidated damages, shall be
deemed admitted when not specifically denied. 3.5.6. Default

ii. When a specific denial requires an oath a) When a declaration of default is proper

1. Allegations of usury in a complaint to Requisites:


recover usurious interest are deemed
admitted if not denied under oath. 1. If the defending party fails to answer within
2. When the action or defense is founded on the time allowed therefor,
actionable documents 2. Upon motion of the claiming party with
notice to the defending party,
Striking out of pleading or matter contained therein. 3. Proof of such failure,

Upon motion made by a party before responding to a


pleading or, if no responsive pleading is permitted by
these Rules, upon motion made by a party within
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

answers thus filed and render judgment upon the


Order of default Judgment by default evidence presented.

e) Extent of relief
Order issued by the A judgment rendered
Pg.
court on plaintiffs by the court based on A judgment rendered against a party in default shall
25
motion and at the start the presentation of not exceed the amount or be different in kind from
of the proceedings, for the plaintiffs that prayed for nor award unliquidated damages.
failure of the defendant evidence ex parte
to file his responsive after the defendant f) Actions where default is not allowed
pleading has been declared in
default, and the 1. Action for annulment of marriage
award shall not 2. Declaration for nullity of marriage
exceed the amount or 3. Action for legal separation
be different from the
kind of prayer that Course of action of the court in case of default in
the plaintiff these cases.
complained as the
facts and evidence so If the defending party in an action for annulment or
warrants. declaration of nullity of marriage or for legal
separation fails to answer, the court shall order the
b) Effect of an order of default prosecuting attorney to investigate whether or not a
collusion between the parties exists, and if there is no
A party in default shall be entitled to notice of collusion, to intervene for the State in order to see to
subsequent proceedings but not to take part in the it that the evidence submitted is not fabricated.
trial
Remedies:
c) Relief from an order of default
After notice of order of default but before judgment:
A party declared in default may at any time after
notice thereof and before judgment file: a. Motion to lift order of default based on
FAME and that he has meritorious defense
1. A motion under oath to set aside the order i. Granted file an answer
of default ii. Denied MR, then Rule 65.
2. Upon proper showing that his failure to
answer was due to fraud, accident, mistake After judgment but before it become final and
or excusable negligence executory
3. That he has a meritorious defense.
Motion for new trial
In such case, the order of default may be set aside on
such terms and conditions as the judge may impose After judgment and already becomes final and
in the interest of justice. executory

d) Effect of a partial default 1. Petition for relief of judgment


2. Action for nullity of judgment
When a pleading asserting a claim states a common 3. Petition for certiorari under Rule 65
cause of action against several defending parties,
some of whom answer and the others fail to do so,
the court shall try the case against all upon the
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

3.5.7. Filing and service of plea dings office which will


forward the same by
a) Payment of docket fees registered ail

It is not simply the filing of the complaint or Service made by Within time specified in
Pg.
appropriate initiatory pleading but the payment of publication the order granting the 26
the prescribed docket fee that vests a trial court with leave to serve summons
jurisdiction over the subject matter or nature of the by publication which
action. shall not be less than 60
days after service
Any defect in the original pleading resulting in
underpayment of the docket fee cannot be cured by Defendant is non- 60 days from the the
amendment. resident on whom service
extrajudicial service is
The Rules now require that appellate docket and made
other lawful fees must be paid within the same period
for taking an appeal. Answer to the amended
complaint
b) Filing versus service of pleadings
a. Amendment as a a. 15days from the the
Filing act of presenting the pleading or other paper matter of right service of the amended
to the clerk of court
complaint
Service act of providing a party with a copy of the
b. 10 days from the
pleading or paper concerned b. Amendment not a notice of order of
matter of right admitting the same
c) Periods of filing of pleadings

Answer to counter- 10 days from the


Answer to the 15 days from the claim or cross-claim receipt of the service
complaint service of summons thereof
unless different period
is fixed Answer to the third- Same period in
party complaint answering the
Answer of a defendant complaint.
foreign private juridical
entity Reply 10 days from the
service of the pleading
a. If he has resident a. 15 days from the responded to
agent service of summons to
such agent Answer to 10 days from the notice
b. if he has no resident supplemental of the order admitting
agent but it has an b. 15 days after the
complaint the supplemental
agent or officer within service of summons to
complaint, unless
the PH said agent or officer
different period is set by
the court.
c. If no resident agent, c. 10 days from the
agent or office within service of summons to
PH, summons be made the corporations office
on proper government
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

d) Manner of filing at his residence if known, with postage fully


prepaid, and with instructions that the
How the pleadings, orders, motion, etc to be filed?
postmaster to return the mail to the sender
after 10 days if undelivered.
Personal filing
Pg.
What is the rule if no registry service is
27
By presenting the original copies thereof, plainly available in the locality of either the sender
indicated as such, personally to the clerk of court and or addressee?
the clerk of court shall endorse on the pleading the
date and hour of filing. The service can be made in ordinary mail.

Filing by mail iii. Substituted service

By sending them by registered mail, and the date of When to resort to substituted service
the mailing of motions, pleadings, etc or payments or
deposits, as shown by the post office stamp on the Service made if the pleadings, motions,
envelope or the registry receipt, shall be considered notices, resolutions, orders and other papers
the date of their filing, payment or deposit in court. cannot be made under the two preceding
The envelope shall be attached to the records of the sections, the office and place of resident of
case. the party or his counsel being unknown.

It does not matter when the court actually receives How it is being made:
the mailed pleading. (Alama B. Russel vs Teofista
Ebasan and Agapito Austria. ) Delivering the copy to the clerk of court, with
a proof of failure both personal service and
e) Modes of service service by mail.

i. Personal service The service is complete at the time of such


delivery.
How personal service is being done?
NOTE: It is the duty of the counsel to inform
1. By delivering personally a copy to that the court of his change of address. In the
party or his counsel absence of proper and adequate notice to
2. By leaving it in his office in his clerk or the court of change of his address, the
with a person having in charge thereof service of the order or resolution of a court
3. If no person is found in his office, or his upon the parties must be made at the last
office is not known, or he has no office, address of their counsel on record.
then by leaving the copy, between the
hours of eight in the morning and six in Service to the counsel of record even
the evening, at the partys or counsels though deceased is valid.
residence if known, with a person of
sufficient age and discretion then It is the duty of the party-litigants to be in
residing therein. contact with their counsel from time to time
in order to be informed of the progress of
ii. Service by mail their case. It is likewise the duty of the
parties to inform the court of the fact of their
If by registered mail, it shall be made by counsels death. Their failure to do so means
depositing the copy in the office, in a sealed they have been negligent in the protection
envelope plainly addressed to the party of of their cause.
his counsel at his office, if known, otherwise
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

iv. Service of judgments, final orders or mailing, unless the court provides
resolutions otherwise.
3. Registered mail complete upon
How is service of judgment, final orders, or the actual receipt by the addressee
resolutions being made? as shown by the registry return
Pg.
card, or five (5) days from the date 28
Either: he received the first notice of the
post master, whichever date is
1. Personally earlier (also known as constructive
2. Registered Mail service).
3. When a party summoned by
publication has failed to appear in Insofar as constructive notice is concerned,
the action, judgments, final orders there must be conclusive proof that a first
or resolutions against him shall be notice was duly sent by the postmaster to
served upon him also by publication the addressee.
at the expense of the prevailing
party. NOTE: The presumption of official duty is not
applicable here.
This rule does not permit the service of
notice to file an answer by publication. Best evidence of the completeness of
Service by publication is only applicable in service
judgments, final orders, and resolutions
when a party summoned by publication The best evidence would be, certification
failed to appear. from the postmaster who should certify not
only that the notice was issued or sent but
After service, a judgment or order which is also as to how, when and to whom the
not appealed nor made subject of a motion delivery and receipt was made.
for reconsideration within the prescribed 15
day period attains finality. The mailman may also testify that the notice
was actually received.
v. Priorities in modes of service and filing
vii. Proof of filing and service
Whenever practicable, the service and filing
of pleadings and other papers shall be done How to prove the filing of the pleading?
personally.
Its existence in the record of the case.
A resort to other modes must be
accompanied by a written explanation why If it is not in the record?
the service or filing was not done personally.
If claimed to have been filed personally, it
Except - with respect to papers emanating shall be proved by the written or stamped
from the court, acknowledgement of its filing by the clerk of
court on a copy of the same.
vi. When service is deemed complete
If filed by a registered mail, by the registry
1. Personal service upon actual receipt and by the affidavit of the person
delivery who did the mailing, containing a full
2. Ordinary mail complete upon statement of the date and place of
expiration of 10 day after the depositing the mail in the post office in a
sealed envelope addressed to court, with
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

fully prepaid, and with instructions to the c) Formal amendment


postmaster to return the mail to the sender
after ten days if not delivered. It is an amendment for any defect in the designation
of the parties and other clearly clerical or
3.5.8. Amendment typographical errors
Pg.
29
Amendment - Amendment is an act of adding, How formal amendment is made
changing, substituting or omitting something from a
pleading, or instrument. A defect in the designation of the parties and other
clearly clerical or typographical errors may be
How amendment is made summarily corrected by the court at any stage of the
action, at its initiative or on motion, provided no
b. Adding or striking out an allegation, or the prejudice is caused thereby to the adverse party
name of any party, or
c. By correcting a mistake in the name of a d) Amendments to conform to or authorize
party, or presentation of evidence
d. Correcting a mistaken or inadequate
allegation or description in any other respect The rule - When issues not raised by the pleadings are
tried with the express or implied consent of the
so that the actual merits the controversy may parties they shall be treated in all respects as if they
speedily be determined, without regard to had been raised in the pleadings.
technicalities, and in the most expeditious and
inexpensive manner. How amendment is made

a) Amendment as a matter of right Such amendment of the pleadings as may be


necessary to cause them to conform to the evidence
A party may amend his pleading once as a matter of and to raise these issues may be made upon motion
right at any time before a responsive pleading is of any party at any time, even after judgment; but
served or, in the case of a reply, at any time within ten failure to amend does not effect the result of the trial
(10) days after it is served of these issues.

b) Amendments by leave of court If evidence is objected to at the trial on the ground


that it is not within the issues made by the pleadings,
Substantial amendments may be made only upon the court may allow the pleadings to be amended and
leave of court. shall do so with liberality if the presentation of the
merits of the action and the ends of substantial justice
But such leave may be refused if it appears to the will be subserved thereby. The court may grant a
court that the motion was made with intent to delay. continuance to enable the amendment to be made.

Requirements for amendment by leave of court Amendment to confer jurisdiction

Orders of the court upon the matters provided in this As a rule, this is not allowed. However, if the
section shall be made upon motion filed in court, and amendment is as a matter of right, thats before a
after notice to the adverse party, and an opportunity responsive pleading is served, the party may amend
to be heard. the pleading to confer jurisdiction.
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

e) Difference from supplemental pleadings 6. If substantial amendment, it requires


another certification against forum
shopping.
Amendment of Supplemental
Pleadings Pleadings
7. In case the complaint is amended, it Pg.
requires the service of summons if the 30
1. Refers to facts 1. Refers to facts
defendant has court has not yet
existing at the time arising after the acquired jurisdiction over his person.
of the filing of the original
commencement of pleading
the action 2. Taken together
2. Supersedes the with the original
3.6. SUMMONS
original pleading pleading
3.6.1. Nature and purpose of summons in
3. May be made 3. Always with leave
relation to actions in personam, in rem and
without leave of of court
quasi in rem
court before 4. A substantial
responsive pleading does not Summons - is a writ by which a defendant is notified
pleading is served require the filing of of the action brought against him or her. In civil
4. When amended a new copy of the action, service of summons means by which the court
pleading is filed, a entire pleading acquires jurisdiction over the person of defendant.
new copy of the
entire pleading Any judgment without such service, in the absence of
must be filed valid waiver is null and void. This is so because the
court does not acquire jurisdiction over the person of
the defendant.
f) Effects of amended pleading
Two fold purpose of summons:
1. An amended pleading supersedes the
1. To acquire jurisdiction over the person of the
pleading that it amends.
defendant
2. The admissions in the superseded 2. To notify the defendant that an action has
pleadings may be received in evidence been commenced so that he may be given
against the pleader the opportunity to be heard in the claim
against him.
3. Claims or defences alleged therein not
incorporated in the amended pleading
shall be deemed waived In an action in personam,

The purpose of summons is not only to notify the


4. The admissions made in the original
defendant of the action against him but also to
pleading shall be treated as an
acquire jurisdiction over his person.
extrajudicial admission which shall be
alleged and proved In an action in rem or quasi in rem,

5. All ancillary orders to the original Jurisdiction over the defendant is not required and
pleading are lifted. the court acquires jurisdiction over an action as long
as it acquires jurisdiction over the res.
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

The purpose of summons in these actions is not the 4. For justifiable reasons, by any suitable
acquisition of jurisdiction over the defendant but person authorized by the court issuing
mainly to satisfy the constitutional requirement of summons. Sec. 3, Rule 14.
due process.
Pg.
Knds of Summons Issuance of alias summons 31

Original Summons a writ issued by the clerk of the When can he court issue alias summons?
court upon receipt of the complaint and the payment
of the requisite docket and other lawful fees by which An alias summons may be issued after the server has
the defendant is notified of the action brought served a copy of the return to the plaintiffs counsel
against him and require him to file his responsive stating the reason for the failure of service, on the
pleading within the period prescribed by the rules. following instances:

Alias Summons a writ issued by the clerk of court a. If a summon is returned without being
when the original summons has been lost of not duly served on any or all of the defendants, or
served without the fault on the part of the plaintiff. b. If the summons has been lost.

Contents of summons
3.6.2. Voluntary appearance
Summons shall be directed to the defendant, signed
The voluntary appearance of the defendant is
by the clerk of court under seal and contain the
equivalent to service of summons.
following:
Voluntary appearance is a waiver of the necessity of
1. The name of the court and the names of the
formal notice.
parties to the action.
2. A direction that the defendant answer The inclusion in a motion to dismiss of other grounds
within the time fixed by these rules. aside from lack of jurisdiction over the person of the
3. A notice that unless the defendant so defendant shall not be deemed a voluntary
answers, the plaintiff will take judgment by
appearance. Sec. 20, Rule 14.
default and may be granted the relief
applied for, Exception to the voluntary submission to the
4. A copy of the complaint and the order for jurisdiction of the court
appointment of guardian ad litem, if any,
shall be attached to the original and each Special appearance, Such that party who make special
copy of the summons. Sec. 2, Rule 14. appearance to challenge among others, the courts
jurisdiction over his person.
Who can serve summons:
Therefore,
Summons issued by the clerk of court may be served
1. When the defendant objects precisely to the
by:
jurisdiction of the court, it cannot be
1. The sheriff considered a voluntary appearance.
2. His deputy; or 2. When a party makes a appearance in court
3. Other proper court officer; or based on the ground of invalid service, it is
not deemed to be voluntary appearance.
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

Filing of opposition amounts to voluntary appearance What are the requisites for valid substituted service
considering that the defendant has participated in of summons?
the proceedings and he has given the opportunity to
file his opposition to the petition. a. Impossibility of prompt personal service
Party relying on substituted service or the Pg.
Filing a motion to set aside the order of the default sheriff must show that the defendant cannot 32
and motion to admit answer is tantamount to be served promptly or there is impossibility
submission to the authority of the court b/c the of prompt service
pleader seeks affirmative relief.
b. Specific details in the return
Filing a motion to dismiss assailing the jurisdiction of The sheriff must describe in the Return of
the court over his person is not equivalent to Summons the facts and circumstances
voluntary appearance. surrounding the attempted personal service

NOTE: If there is no valid service of summons, a c. A person of a suitable age and discretion The
motion to dismiss can be filed on the ground of lack sheriff must determine if the person found
of jurisdiction over the person of the defending party. in the alleged dwelling or residence of the
defendant is of legal age,
3.6.3. Personal service d. Competent person in charge, who must have
Whenever practicable, the summons shall be served sufficient knowledge to understand the
upon the person of the defendant by: obligation of the defendant in summons, its
importance, and the prejudicial effects
a. Handing a copy thereof to the defendant in arising from inaction on summons.
person, or
b. If he refuses to receive and sign for it, by How can substituted service of summons be effected
tendering it to him.
If, for justifiable causes, the defendant cannot be
NOTE: The personal service of summon is the served within a reasonable time as provided in the
preferred mode, provided he is in the PH. preceding section, service may be effected by:

Reason it ensures that he notice desired under a. Leaving copies of the summons at the
constitutional requirement of due process is defendants residence with some person of
accomplished. Therefore, the personal service of suitable age and discretion then residing
summons must be the first option before substituted therein.
service in case of in personam and the defendant is b. Leaving the copies at the defendants office
in the PH. or regular place of business with some
competent person in charge thereof.
The mode itself, and not just service of summon, is
strictly required.
Service in person of the defendant is the preferred
3.6.4. Substituted service mode of service.
When substituted service of summons be made If the defendant refuses the service, the server should
not resort to substituted server. He must TENDER it
Substituted service may be resorted to only when
to him. Tendering is a part of the service in person.
service of summons within a reasonable time is
impossible impossible prompt the service should
appear in the return of service.
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

The sheriff or server must first exert all efforts to 2. Supported by affidavit of the plaintiff or
serve the defendant in person. If this effort fails, then some person on his behalf, setting forth the
substituted service can be made. This effort must be grounds for application.
stated in the proof of service.
Can it be allowed in case of action in personam? Pg.
3.6.5. Constructive service (by publication) 33
Yes. Because Sec. 14 says in any action. Therefore,
As a rule, summons by publication is available only in service of summons by publication is allowed in an
actions in rem or quasi in rem. action in personam if the defendants whereabouts is
unknown.
It is not available as a means of acquiring jurisdiction
over the person of the defendant in an action in b) Service upon residents temporarily outside the
personam. Philippines

Publication is notice to the whole world that the Who are these?
proceeding has for its object to bar indefinitely all
who might be minded to make an objection of any Defendant who ordinarily resides within the PH but
sort against the right sought to be established. It is the who is temporarily out of it.
publication of such notice that brings the whole world
as a party in the case and vests the court with How summons made? with leave of court, the
jurisdiction to hear and decide it summons can be be effected out of the Philippines as
in extra-territorial service of summons under Sec. 15,
a) Service upon a defendant where his identity is of Rule 14.
unknown or his whereabouts are unknown
3.6.6. Extra-territorial service, when allowed
How can the summons be served in case defendants
identity or whereabouts are unknown? When extra-territorial service of summons be
effected?
a. In action where defendant is designated as
unknown owner, or a. When the defendant does not reside or is
b. Whenever his whereabouts are unknown and not found in the PH, or the action affects the
cannot be ascertained by diligent inquiry, personal status of the plaintiff or relates to;
or
b. The subject of which is, property within the
Service may, by the leave of court, be affected PH, in which the defendant has or claims a
upon him by: lien or interest, actual or contingent, or
which the relief demanded consists, wholly
a. Publication in a newspaper of general or in part, in excluding the defendant from
circulation and in such places and for such any interest therein; or
time as the court may order. c. The property of the defendant has been
attached within the PH,
How can a party ask for the leave of court regarding
service of summons? The service may, by leave of court, be effected out of
It must be: the PH.

1. Motion in writing
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

How can extra-territorial service of summons be Upon him by the officer having the management of
done? such jail or institution who is deemed deputized as a
special sheriff for the said purpose. Sec. 9, Rule 14.
a. By personal service as under Sec. 6, Rule 14.
b. By publication in a newspaper of general To whom summons shall be served in case of a minor
Pg.
circulation in such places and for such time or incompetent? 34
as the court may order, in which case a copy
of the summons and order of court shall be a. Upon him by personally and on his legal
sent by registered mail to the last known guardian if he has one,
address of the defendant. b. If none, upon his guardian ad litem whose
c. In any other manner the court may deemed appointment shall be applied for by the
sufficient. plaintiff
c. In the case of a minor, service may also be
made on his father or mother. Sec. 10, Rule
Any order granting such leave shall specify a 14.
reasonable time, which shall not be less than sixty
[60] days after the notice, within which the defendant
must answer. Summons to Domestic Juridical Entity

NOTE: In in rem proceedings, summon is through When defendant is a corporation, partnership, or


publication. It is the notice to the whole world that association organized under laws of PH with juridicial
the proceeding has for its object to bar indefinitely all personality, service may be made on the following:
who might be minded to make an objection of any
sort to the right sought to be established. a. President
b. Managing partner
They are all deemed notified in the publication. c. General partner
d. Corporate secretary
NOTE: In case of a non-resident defendant and the e. Treasurer
case is action in personam, the court cannot acquire f. In-house counsel
jurisdiction. Unless, the person voluntarily appears in
court. Otherwise, the service is insufficient.

But if it is in rem, then the jurisdiction over the person The enumerations are exclusive.
of defendant is not required, and publication
validated the proceedings. What is the remedy of the plaintiff in case of
summons cannot be made to officers of the
If the defendant is a PH resident, service of summons corporation in action in personam?
may, by leave of court, be effected out of Philippines
(Rule 14, Sec. 15). NOTE: here, the defendant must be The remedy of the plaintiff in case of failure to serve
a citizen of the Philippines otherwise, the PH court the summons to the officers of a domestic
cannot acquire jurisdiction. corporation in an action in personam is to amend his
complaint and asked for the issuance of writ of
3.6.7. Service upon prisoners and minors preliminary attachment thereby converting the
To whom the summons shall be served in case of action into an action quasi in rem where service of
prisoners summons by publication is allowed in order to action
jurisdiction over the res and the acquisition of
jurisdiction is merely for observance of due process.
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

3.6.8. Proof of service other than by a and defenses of the


pleading. parties submitted to
It must be in writing.
the court for
A Motion is no a appropriate judgment
Contents of the proof of service of summons:
pleading
Pg.
1. Manner, place and the date of service 35
Motions must be in writings
2. Specify any papers which have been served
with the process All motions shall be in writing except those made in
3. Name of the person who received the same open court or in the course of a hearing or trial. Sec.
4. It shall be sworn to when made by a person 2, Rule 15.
other than the sheriff or his deputy
c) Contents and forms of motions
Proof of the service of summons by publication
A motion shall state:

1. Affidavit of the printer, his foreman or 1. the relief sought to be obtained and
principal clerk or of the editor, business or 2. the grounds upon which it is based, and
advertising manager, to which affidavit a 3. if required by these Rules or necessary to
copy of the publications shall be attached, prove facts alleged therein, shall be
2. By an affidavit showing the deposit of a accompanied by supporting affidavits and
copy of the summons and order for other papers.
publication in the post office, postage,
prepaid, directed to the defendant by d) Notice of hearing and hearing of motions
registered mail to his last known address.
Except for motions which the court may act upon
without prejudicing the rights of the adverse party,
every written motion shall be set for hearing by the
3.7. MOTIONS applicant.

3.7.1. Motions in general Three day notice rule

a) Definition of a motion Every written motion required to be heard and the


notice of the hearing thereof shall be served in such a
Motion - A motion is an application for relief other
manner as to ensure its receipt by the other party at
than by a pleading.
least three (3) days before the date of hearing, unless
the court for good cause sets the hearing on shorter
A partys request, written or oral, to the court for an
notice.
order or other action. It shall include an informal
written request to the court, such as a letters. Rules
Ten day notice rule
on Small Claims
The notice of hearing shall be addressed to all parties
b) Motions versus pleadings
concerned, and shall specify the time and date of the
hearing which must not be later than ten (10) days
Motion Pleadings after the filing of the motion

Proof of service is necessary


A motion is an Pleadings are the
application for relief written statements of No written motion set for hearing shall be acted upon
the respective claims by the court without proof of service thereof.
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

e) Omnibus motion rule Bill of Particulars a more definite statement of fact


and material allegations in the pleadings.
Subject to the provisions of section 1 of Rule 9, a
motion attacking a pleading, order, judgment, or Motion for bill of particulars application before the
proceeding shall include all objections then available, court for a more definite statement of fact and Pg.
and all objections not so included shall be deemed material allegations in the pleadings. 36
waived
NOTE: Failure to allege fraud does not constitute
Exceptions to the omnibus motion rule:
ground for dismissal because it can be cured in a bill
of particulars
1. Lack of jurisdiction over the subject matter
2. Litis pendentia
3. Res judicata Bill of particulars in Bill of particulars in
4. Statute of limitations Civil Cases Rule 12 Criminal Cases Rule 116

f) Litigated and ex parte motions 1. Must be filed 1. Must be filed before


before responsive arraignment
Litigated - a motion which is made with notice to the pleading, or 10 2. Directed against the
adverse party to give an opportunity to oppose. days in case of criminal complaint
reply or information
Ex parte - A motion made without the presence or a 2. Directed against 3. The accused may
notification to the other party because the question the pleading proceed with the
generally presented is not debatable. 3. The moving party arraignment and
may file his enter his plea,
Other kinds of motions responsive unless the denial is
pleading within tainted with grave
Non litigated a motion where notice and hearing the period he is abuse of discretion,
are not required. entitled to but in hence Petition for
no case less than Certiorari is the
Special a motion addressed to the sound discretion five days, unless remedy.
of the court. the denial is
tainted with grave
Written motions not made in open court. This is the abuse of
general rule. discretion, hence
Petition for
Oral a motion made in open court. Certiorari is the
remedy.
Motion of course the applicant is entitled to the
relief sought subject to the discretion of the court.

g) Pro-forma motions

A motion that fails to comply with the requirements a) Purpose and when applied for
of the rule is a pro-forma motion. The same produces
Purpose
no legal effect and the court has no authority to act
upon it.
The purpose of the motion is to seek an order from
the court directing the pleader to submit a bill of
3.7.2. Motions for bill of particulars
particulars which avers matters with sufficient
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

definitiveness or particularity to enable the movant to 3. Make such other order as it deemed just
prepare his responsive pleading.

When a party can apply for bill of particulars d) Effect on the period to file a responsive pleading

Effect of filing motion for bill of particulars Pg.


Before a responding to a pleading. Therefore, within
37
the time required to file a responsive pleading and The filing of the motion of bill of particulars stays the
before a responsive pleading is filed by him. filling of the answer or responsive pleading.

In a reply, it must be within 10 days from the service Effect of service of a more definite statement or the
thereof. denial of the motion
The moving party may file a responsive pleading
The motion for bill of particulars should contain:
within the period to which he was entitled at the time
1. The defects complained of of filing in his motion, which shall not be less than 5
2. Paragraphs wherein they are contain days in any event.
3. Details desired
In what proceedings Bill of Particualrs is prohibited?
b) Actions of the court
a. Prohibited in intra-corproate controversies
Upon filing, the clerk of court must immediately bring Bill of particulars is prohibited in Intra-Corporate
it to the attention of the court, in which the court Controversies under Interim Rules of Procedure on
may: Intra-Corporate Controversies.

1. Deny It is therefore essential for the complaint to show on


2. Grant it outright its face what are claimed to be fraudulent corporate
3. Allow the parties the opportunity to be acts if the complainant wishes to invoke the courts
heard special jurisdiction. Reason fraud in intra-corporate
controversies must be based on devises and
When to comply if the motion is granted? schemes employed by, or any act, the board of
directors, business associates, officers or partners,
1. Within 10 days from the notice of order amounting to fraud o misrepresentation which may
2. Unless a different period if fixed by the court be detrimental to the interest of public and/or of the
It may be in whole or in part. stock holders, partners, or members of any
corporation partnership, or association.
How to file bill of particulars?
The act of fraud and misrepresentation complained in
1. By separate pleading the pleading of becomes a criterion in determining
2. Amended pleading, whether the complaint on its fact has merits, or
within the jurisdiction of special commercial court, or
c) Compliance with the order and effect of merely a nuisance suit.
noncompliance
b. Prohibited in Summary Procedure expressly
Effects of non-compliance of insufficient compliance provided in Sec. 19, b.
c. Prohibited in Small Claim Cases Sec. 14, b.
1. Order the striking out of the pleading d. Prohibited in Environmental Cases Rule 2, Sec.
2. Order the striking the portions to which the 2, b.
order directed
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

3.7.3. Motion to dismiss If without prejudice, the plaintiff may refile the
action.
Motion to dismiss an application for the dismissal
of the action based on the grounds set forth in the If with prejudice, Appeal from the order of dismissal.
Sec. 1, Rule 16.
Pg.
If with prejudice, and with grave abuse of discretion
38
It is filed answering to a complaint or pleading. Petition for certiorari.

a) Grounds d) Remedies of the defendant when the motion is


denied
A motion to dismiss may be made on any of the
following grounds: a. File an answer with the reglementary
period, If the motion is denied, the movant
a. That the court has no jurisdiction over the shall file his answer within the balance of the
person of the defending party; period prescribed by Rule 11 to which he was
b. That the court has no jurisdiction over the entitled at the time of serving his motion,
subject matter of the claim; but not less than five (5) days in any event,
c. That venue is improperly laid; computed from his receipt of the notice of
d. That the plaintiff has no legal capacity to sue; the denial. If the pleading is ordered to be
e. That there is another action pending amended, he shall file his answer within the
between the same parties for the same period prescribed by Rule 11 counted from
cause; service of the amended pleading, unless the
f. That the cause of action is barred by a prior court provides a longer period. Sec. 4, Rule
judgment or by the statute of limitations; 16.
g. That the pleading asserting the claim states b. If the denial is with grave abuse of
no cause of action; discretion, petition for certiorari under Rule
h. That the claim or demand set forth in the 65.
plaintiff's pleading has been paid, waived, c. File an answer, proceed to trial, and await
abandoned, or otherwise extinguished; judgment before interposing an appeal
i. That the claim on which the action is
founded is enforceable under the provisions e) Effect of dismissal of complaint on certain grounds
of the statute of frauds; and
j. That a condition precedent for filing the Subject to the right of appeal, an order granting a
claim has not been complied with. motion to dismiss based on paragraphs (f), (h) and (i)
of section 1 hereof shall bar the refiling of the same
b) Resolution of motion action or claim.

The hearing, the court may dismiss the action or Where there is a bar for refiling the same action or
claim, deny the motion, or order the amendment of claim
the pleading.
f. That the cause of action is barred by a prior
The court shall not defer the resolution of the motion judgment or by the statute of limitations;
for the reason that the ground relied upon is not
indubitable. h. That the claim or demand set forth in the
plaintiff's pleading has been paid, waived,
In every case, the resolution shall state clearly and abandoned, or otherwise extinguished;
distinctly the reasons therefor.
i. That the claim on which the action is
c) Remedies of plaintiff when the complaint is founded is enforceable under the provisions
dismissed of the statute of frauds
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

Therefore, dismissal based on other grounds would If as between the two cases, only the identities of the
tantamount to dismissal without prejudice, and the parties can be shown, but not identical cause of
plaintiff can still refile the case. action, the res judicata as conclusiveness of
judgment applies.
f) When grounds pleaded as affirmative defenses
Pg.
Conclusiveness of Judgment 39
Remedy is no motion to dismiss has been filed
Where there is identity of parties in the first and
No motion to dismiss has been filed, any of the
second cases, but no identity of causes of action the
grounds for dismissal provided for in this Rule may be first judgment is conclusive only as to those matters
pleaded as an affirmative defense in the answer and, actually and directly controverted and determined
in the discretion of the court, a preliminary hearing not as to matters merely involved therein. This is the
may be had thereon as if a motion to dismiss had concept of res judicata known as conclusiveness of
been filed. judgment.

The dismissal of the complaint under this section shall Effect the binding effect and enforceability of that
be without prejudice to the prosecution in the same earlier dictum can no longer be re-litigated in a later
or separate action of a counterclaim pleaded in the since the issue has already been resolved and finally
answer.
laid to rest in the earlier case.
g) Bar by dismissal
h) Distinguished from demurrer to evidence under
Res judicata as a ground for dismissal is based on two Rule 33
grounds, namely:
Motion to dismiss Demurrer to evidence
a. public policy and necessity, which makes it to the
interest of the State that there should be an end
to litigation (republicae ut sit litium); and Filed before filing an Made after the plaintiff
b. the hardship on the individual of being vexed answer to a complaint rests its case (after
twice for the same cause (nemo debet bis vexari or pleading presentation of
et eadem causa). evidence)
Grounds set forth in
Two concepts of res judicata Sec. 1, Rule 16. Ground is that the
plaintiff is not entitled
1. Bar by prior judgment If denied, remedy is to to relief
2. Conclusiveness of judgment file an answer, and wait
for the case to be If denied, present
Requisites for barred by prior judgment-
terminated and allege evidence.
on appeal the grounds
1. The former judgment or order must be final
for motion to dismiss.
2. It must be a judgment on the merits
3. It must have been rendered by a court
having jurisdiction over the subject matter
and the parties
4. There must be between the first and second
actions, identity of parties, subject matters
and cause of actions.
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

3.8. DISMISSAL OF ACTIONS Requirement for dismissal upon motion of the


plaintiff in class suit
3.8.1. Dismissal upon notice by plaintiff; two-
dismissal rule A class suit shall not be dismissed or compromised
without the approval of the court.
Pg.
A complaint may be dismissed by the plaintiff by filing
40
a notice of dismissal at any time before service of the 3.8.3. Dismissal due to the fault of plaintiff
answer or of a motion for summary judgment.
When there can be dismissal due to the fault of the
When to be made: plaintiff

1. Any time before service of the answer If, for no justifiable cause,
2. Motion for summary judgment
3. If there is none, before the introduction of 1. The plaintiff fails to appear on the date of the
evidence at the trial or hearing. presentation of his evidence in chief on the
complaint, or
Upon such notice being filed, the court shall issue an 2. The plaintiff fails to prosecute his action for
order confirming the dismissal. Unless otherwise an unreasonable length of time, or
stated in the notice, the dismissal is without 3. The plaintiff fails to comply with these Rules
prejudice. Sec. 4, Rule 17. or any order of the court

Two dismissal rule How the dismissal can be made

A notice operates as an adjudication upon the merits The complaint may be dismissed upon motion of the
when filed by a plaintiff who has once dismissed in a defendant or upon the court's own motion, without
competent court an action based on or including the prejudice to the right of the defendant to prosecute
same claim. his counterclaim in the same or in a separate action.

3.8.2. Dismissal upon motion by plaintiff; effect Effect of the dismissal under this Rule
on existing counterclaim
This dismissal shall have the effect of an adjudication
Except as provided in the preceding section, a upon the merits, unless otherwise declared by the
complaint shall not be dismissed at the plaintiff's court
instance save upon approval of the court and upon
such terms and conditions as the court deems proper. 3.8.4. Dismissal of counterclaim, cross-claim or
third-party complaint
Effect of the counter-claim
The provisions of this Rule shall apply to the dismissal
If a counterclaim has been pleaded by a defendant of any counterclaim, cross-claim, or third-party
prior to the service upon him of the plaintiffs motion complaint.
for dismissal, the dismissal shall be limited to the
complaint. A voluntary dismissal by the claimant by notice as in
section 1 of this Rule, shall be made before a
The dismissal shall be without prejudice to the right responsive pleading or a motion for summary
of the defendant to prosecute his counterclaim in a judgment is served or, if there is none, before the
separate action unless within fifteen (15) days from introduction of evidence at the trial or hearing.
notice of the motion he manifests his preference to
have his counterclaim resolved in the same action.
Unless otherwise specified in the order, a dismissal
under this paragraph shall be without prejudice.
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

3.9. PRE-TRIAL (Rule 18) Court annexed mediation

3.9.1. Concept of pre-trial Court annexed mediation (CAM) is a part of pre-trial


and now mandatory. Once agreed, it will be
Pre-trial A procedural device used prior to trial to submitted to the courts approval. Mediators are Pg.
narrow issues to be tried, and to secure stipulations accredited and trained from Philippine Mediation 41
as to matters and evidence to be heard, and to take Center.
all other steps necessary to and in the disposition of
the case. 3.9.3. Notice of pre-trial

When to Conduct Rule in notice of pre-trial conference

After the last pleading has been served and filed. It 1. The notice shall be served on counsel
shall be the duty of the plaintiff to promptly move ex 2. Or to the party is he has no counsel
parte that the case be set on pre-trial.
The counsel is then charged with eth duty of notifying
If the plaintiff fails to move ex parte to set the case on the party represented by him.
pre-trial, the clerk of court shall set the same.
3.9.4. Appearance of parties; effect of failure to
3.9.2. Nature and purpose appear

A pre-trial is mandatory. It shall be the duty of the parties and their counsel to
appear at the pre-trial.
Purposes of Pre-trial
How can a party be excused from appearing in the
1. The possibility of an amicable settlement or pre-trial
of a submission to alternative modes of
dispute resolution; 1. Valid cause is shown therefore,
2. The simplification of the issues; 2. If a representative shall appear in his behalf,
3. The necessity or desirability of amendments he shall be fully authorized in writing to:
to the pleadings; a. Enter amicable settlement
4. The possibility of obtaining stipulations or b. Submit to alternative modes of dispute
admissions of facts and of documents to
resolution
avoid unnecessary proof;
c. Enter into stipulation or admissions of
5. The limitation of the number of witnesses;
facts and documents.
6. The advisability of a preliminary reference of
issues to a commissioner;
7. The propriety of rendering judgment on the Effects of failure to appear in pre-trial
pleadings, or summary judgment, or of
dismissing the action should a valid ground If plaintiff fails to appear,
therefor be found to exist;
8. The advisability or necessity of suspending 1. He will be declared non-suited
the proceedings; and 2. It will cause dismissal of the action,
9. Such other matters as may aid in the prompt a. with prejudice,
disposition of the action. b. unless provided by the court.

The dismissal is without prejudice to the counter


claim raised by the defendant which can be
prosecuted in another case.
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

Since the dismissal is with prejudice and it has discovery procedures or referral to
adjudication on merits, the remedy is appeal. If the commissioners; and
court provided that it shall be not with prejudice, then 6. The number and names of the witnesses,
certiorari is the remedy. and the substance of their respective
testimonies.
Pg.
If defendant fails to appear, 42
What is the effect of non-filing?
1. Allow the plaintiff to present evidence ex-
parte Same effect of failure to appear. Therefore, a plaintiff
2. Allow the court render judgment on basis may be declared non-suited and the case be
thereof, in this case, there is no limitation on dismissed with prejudice. In case of defendant, there
extend of award or relief prayed. will be an ex parte presentation of evidence and
judgment will be rendered based on the same.
Possible remedy of the defendant
Contents of records of pre-trial
a. Before judgment since it is interlocutory
1. Recite in detail the matters taken up
order, certiorari under R 65
2. Action taken
b. After judgment but before finality MR or
3. Amendments allowed to the pleadings
New Trial based on FAME, if denied, appeal
4. Agreements or admissions made by the
on the judgment, unless tainted with GAD
parties as to any of the matters considered.
then certiorari is available.
5. Should the action proceed to trial, the order
c. After finality of judgment Petition for
shall, explicitly define and limit the issues to
relief of judgment, Rule 38, Motion for
be tried.
annulment of judgment if the MR or NT is
6. The contents of the order shall control the
not available, petition for certiorari,
subsequent course of the action, unless
collateral attack.
modified before trial to prevent manifest
injustice
3.9.5. Pre-trial brief; effect of failure to file

When filed
May pre-trial order be amended or modified?
In such manner as to insure their receipt at least 3
Yes. The contents or order shall control the
days before the date of pre-trial.
subsequent course of action, unless modified before
Contents of pre-trial brief tiral to prevent manifest of justice.

1. A statement of their willingness to enter into 3.9.6. Distinction between pre-trial in civil case
amicable settlement or alternative modes of and pre-trial in criminal case
dispute resolution, indicating the desired
terms thereof; Civil Pre-Trial Criminal Pre-Trial
2. A summary of admitted facts and proposed
stipulation of facts; 1. The plaintiff move 1. The court orders
3. The issues to be tried or resolved; ex parte to set the pre-trial, no
4. The documents or exhibits to be presented case for pre-trial motion is required
stating the purpose thereof;
5. A manifestation of their having availed or
their intention to avail themselves of
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

2. Filed after the last 2. Filed 30 days after Matters cannot be compromised
pleading have been the court acquired
1. Civil status of persons
served and filed jurisdiction
2. Validity of marriage
3. There is a 3. No possibility of 3. Legal separation
Pg.
possibility of amicable 4. Grounds for legal separation 43
amicable settlement 5. Future support
settlement 6. Legitime
4. Agreements and 7. Jurisdiction
4. Agreements and admissions must Lawyers are allowed to attend in mediation and their
admissions in pre- be signed by the role is that of an adviser, consultant or free legal aid
trial need not be parties and
counselor for indigent litigants.
signed by the counsel.
parties and their
Alternative Dispute Resolution Act
counsel. It is 5. In case of non-
implied. appearance,
Sec. 24 states that RTC does not have jurisdiction over
sanctions are
disputes that are properly subject of arbitration
5. In case of non- imposed against
pursuant to arbitration clause, and mandates the
appearance of the counsel of
plaintiff, it will accused and referral to arbitration.
cause dismissal prosecutor
Uncitral Law
with prejudice, if it
is the defendant,
Sec. 35 states that foreign arbitral awards must be
there will be ex-
parte presentation confirmed by the RTC to be enforceable.
of evidence.
NOTE: Parties are bound by delimitation of issues
during the pre trial because they themselves agreed
to the same. Munasque vs CA

3.9.7. Alternative Dispute Resolution (ADR) 3.10. INTERVENTION

a) Special Rules of Court on ADR (A.M. No. 07-11-08- Intervention - a proceeding whereby a party, with
SC) leave of court, is allowed to intervene in an action
whenever he has a legal interest in the matter in
Cases that are mediatable- litigation, or in the success of either of the parties, or
an interest against both, or is so situated as to be
1. All civil cases adversely affected by the distribution or other
2. Settlement of Estate disposition of property in the custody of the court or
3. Cases coginizable by Lupon Tagapamayapa of an officer thereof.
4. Cases governed by Summary Procedure
5. Civil aspect of criminal negligence under RPC 3.10.1. Requisites for intervention
6. Family law issues, such as support, custody,
visitation, guardianship and property Requisites:
matters
1. The party has a legal interest in the matter in
7. Civil aspect of BP22, simple theft, libel and
litigation, or in the success of either of the
estafa.
parties, or an interest against both, or is so
situated as to be adversely affected by a
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

distribution or other disposition of property Kinds of Subpoena-


in the custody of the court or of an officer
thereof 1. Subpoena ad testificandum
2. With leave of court 2. Subpoena duces tecum.
3. The same is not intended for delay or
Who may issue subpoena? Pg.
prejudice the adjudication of the rights of 44
the original parties
1. The court before whom the witness is
3.10.2. Time to intervene required to attend
2. The court of the place where the deposition
The motion to intervene may be filed at any time is to be taken
before rendition of judgment by the trial court. A copy 3. The officer or body authorized by law to do
of the pleading-in-intervention shall be attached to so in connection with investigations
the motion and served on the original parties. conducted by the said officer or body
4. Any justice of the SC or CA in any case or
The intervenor shall file: investigation pending within the PH

1. A complaint-in-intervention if he asserts a
claim against either or all of the original Subpoena to a prisoner
parties, or
2. An answer-in-intervention if he unites with When application for a subpoena to a prisoner is
the defending party in resisting a claim made, the judge or officer shall examine and study
against the latter. carefully such application to determine whether the
same is made for a valid purpose.
The answer to the complaint-in-intervention shall be
filed within fifteen (15) days from notice of the order
admitting the same, unless a different period is fixed
by the court Limitation in issuance of subpoena - No prisoner
sentenced to death, reclusion perpetua or life
3.10.3. Remedy for the denial of motion to imprisonment and who is confined in any penal
intervene institution shall be brought outside the said penal
institution for appearance or attendance in any court
The remedy in case of denial is to file a separate unless authorized by the Supreme Court
action, or appeal, or mandamus if the denial is tainted
with grave abuse of discretion, petition for certiorari 3.11.1. Subpoena duces tecum
under Rule 65 if there are no other plain, speedy, and
adequate remedy. A subpoena for the taking of his deposition. It may
also require him to bring with him any books,
documents, or other things under his control

3.11. SUBPOENA (Rule 22) 3.11.2. Subpoena ad testificandum

Subpoena a coercive process issued by the court or A subpoena directed to a person requiring him to
judge stating the name of the court and the title of attend and to testify at the hearing or the trial of an
the action for investigation, direct to a person and action, or at any investigation conducted by
requiring him to attend the hearing on the trial of an competent authority
action, at the state date, time and place.
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

Upon proof of the service thereof and of the failure of


the witness, may-
3.11.3. Service of subpoena
1. May issue a warrant to the sheriff of the
How subpoena is served?
province, or his deputy, to arrest the witness
Pg.
Service of a subpoena shall be made in the same and bring him before the court or officer 45
manner as personal or substituted service of where his attendance is required, and
summons. 2. The cost of such warrant and seizure of such
witness shall be paid by the witness if the
What is the duty of the person serving the court issuing it shall determine that his
subpoena? failure to answer the subpoena was willful
and without just excuse. Sec. 8, Rule 22.
1. The original shall be exhibited
2. A copy thereof delivered to the person on
whom it is served, 3.11.5. Quashing of subpoena
3. Tendering to him the fees for one day's
attendance and the kilometrage allowed by When to file
these Rules, except that, when a subpoena is
Upon motion promptly made, in any event, at or
issued by or on behalf of the Republic of the
before the time specified therein. Sec. 4, Rule 22.
Philippines or an officer or agency thereof,
the tender need not be made. Grounds for quashing subpoena duces tecum:

1. If it is unreasonable and oppressive


What is the manner of service? 2. Relevancy of the books, documents or things
does not appear
The service must be made so as to allow the witness
3. If the person in whose behalf the supoeana
a reasonable time for preparation and travel to the
is issued fails to advance the reasonable cost
place of attendance. If the subpoena is duces tecum,
of production thereof.
the reasonable cost of producing the books,
documents or things demanded shall also be
tendered Grounds for quashing subpoena ad testificandum:

What is the effect if person is in court? 1. The witness is not bound thereby
2. In either case, the subpoena may be
A person present in court before a judicial officer may
quashed on the ground that witness fees and
be required to testify as if he were in attendance upon kilometrage allowed by these Rules were not
a subpoena is sued by such court or officer. Sec. 7, tendered when subpoena is served. Sec. 4,
Rule 22. Rule 22.

3.11.4. Compelling attendance of witnesses;


contempt
Courses of action of the court in case of failure of the
witness to attend:
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

3.12. MODES OF DISCOVERY b. As to maker of taking


1. Deposition by oral examination
Modes of discovery It is a device to obtain 2. Deposition by written interrogatories
information about relevant matters on case form
adverse party in preparation of pre-trial. Pg.
Purpose of taking depositions 46
Purposes of modes of discovery-
1. Assist the parties ascertaining the truth
1. Used as device to narrow and clarify basic
in checking and preventing injury
issues between the parties
2. Provide an effective means of detecting
2. Used as device for ascertaining facts relative
and exposing false, fraudulent claims
to the issues between the parties
and defenses
3. To obtain full knowledge of the issues and
3. Make available in a simple, convenient
facts of the case
and inexpensive way, facts which
4. To avoid perjury and detection of false and
otherwise could not be proved except
fraudulent claims and defenses
with greater difficulty
5. To expedite the proceedings
4. Educate the parties in advance of trial s
6. To simplify the issues of the case
to real value of their claims and
defenses thereby encouraging
Nature of modes of discovery settlement
5. Expedite litigation
It rests upon the sound discretion of the court. In the
6. Prevent delay
same vein, their sanctions for failure to comply also
7. Simplify and narrow down issues
rest on sound discretion of the court.
8. Expedite both preparation and trial

What are the modes of discoveries under the Rules?

1. Deposition pending action - Rule 23 3.12.1. Depositions pending action (Rule 23);
2. Deposition before action or pending appeal - depositions before action or pending appeal
Rule 24
(Rule 24)
3. Interrogatories to parties - Rule 25
a) Meaning of deposition
4. Admission by adverse party - Rule 26
5. Production or inspection of documents or Deposition defined it its the taking of the
things Rule 27 testimony of any person, upon oral or written
6. Physical and mental examination of persons interrogatories whether a part or not, at instance of
- Rule 28 any party.

Kinds of deposition Depositions pending action; how made

a. As to nature By leave of court, after the court acquired jurisdiction


1. Deposition de bene esse testimony of over the defend ant or property of the subject matter.
a witness or party pending action
2. Deposition in perpetuam rei memoriam Without such leave, after an answer has been served.
testimony of a witness or a party Sec. 1, Rule 23.
before action
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

(b) The deposition of a party or of any one


who at the time of taking the deposition was
Depositions before action; how made an officer, director, or managing agent of a
public or private corporation, partnership, or
Any person who desires to perpetuate his own association which is a party may be used by
an adverse party for any purpose; Pg.
testimony or that of another person may file petition 47
regarding:
(c) The deposition of a witness, whether or
not a party, may be used by any party for any
1. Any matter that may be cognizable before in
purpose if the court finds: (1) that the
any court of PH witness is dead, or (2) that the witness
2. In court of the place of residence of expected resides at a distance more than one hundred
adverse party. Sec. 1, Rule 24 (100) kilometers from the place of trial or
hearing, or is out of the Philippines, unless it
Deposition pending appeal; how made appears that his absence was procured by
the party offering the deposition, or (3) that
If an appeal has been taken from a judgment of a the witness is unable to attend or testify
court, including the Court of Appeals in proper cases, because of age, sickness, infirmity, or
imprisonment, or (4) that the party offering
or before the taking of an appeal if the time therefor
the deposition has been unable to procure
has not expired, the court in which the judgment was the attendance of the witness by subpoena;
rendered may: or (5) upon application and notice, that such
exceptional circumstances exist as to make it
1. Allow the taking of depositions of witnesses desirable, in the interest of justice and with
to perpetuate their testimony for in the due regard to the importance of presenting
event of further proceedings in the said the testimony of witnesses orally in open
court. Sec. 7, Rule 24. court, to allow the deposition to be used;
and

Primary function of modes of discovery is to


(d) If only part of a deposition is offered in evidence
supplement the pleadings for the purpose of
by a party, the adverse party may require him to
disclosing the real points of dispute between the introduce all of it which is relevant to the part
parties and affording an adequate factual basis during introduced, and any party may introduce any other
the preparation of the trial. parts.

b) Uses; scope of examination Scope of depositions

Uses of depositions Unless otherwise ordered by the court as provided by


section 16 or 18 of this Rule, the deponent may be
At the trial or upon the hearing of a motion or an examined regarding any matter, not privileged, which
interlocutory proceeding, any part or all of a is relevant to the subject of the pending action,
deposition, so far as admissible under the rules of whether relating to the claim or defense of any other
evidence, may be used against any party who was party, including the existence, description, nature,
present or represented at the taking of the deposition custody, condition, and location of any books,
or who had due notice thereof, in accordance with documents, or other tangible things and the identity
any one of the following provisions;
and location of persons having knowledge of relevant
facts.
(a) Any deposition may be used by any party
for the purpose of contradicting or
impeaching the testimony of deponent as a
witness;
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

c) When may objections to admissibility be made justice, with an offer on the part of the court making
the request, to do the like for another, in a similar
Subject to the provisions of section 29 of this Rule, case.
objection may be made at the trial or hearing, to
receiving in evidence any deposition or part thereof
Pg.
for any reason which would require the exclusion of Commission Letter Rogatory
48
the evidence if the witness were then present and
testifying
1. An instrument 1. Instrument
d) When may taking of deposition be terminated or issued by a court of whereby a foreign
its scope limited justice, or other court is informed
competence of pendency of a
At any time during the taking of the deposition, on
tribunal to case and the name
motion or petition of any party or of the deponent,
authorize a person of the witness, and
and upon a showing that the examination is being
to take depositions, Is requested to
conducted:
or do any other act cause their
1. in bad faith or by authority of such depositions to be
2. in such manner as unreasonably to annoy, court or tribunal. taken in due
embarrass, or oppress the deponent or 2. Addressed to non- course of law for
party, judicial foreign furtherance of
officer who will justice, with an
The court in which the action is pending or the take deposition offer on the part of
Regional Trial Court of the place where the deposition 3. Rules applicable the court making
is being taken may order the officer conducting the
are those of the request, to do
examination to cease forthwith from taking the
requesting court the like for
deposition, or may limit the scope and manner of the
4. Allowed if another, in a
taking of the deposition, as provided in section 16 of
this Rule. permission of the similar case.
foreign country is 2. Addressed to
If the order made terminates the examination, it shall given judicial officer of a
be resumed thereafter only upon the order of the foreign country
court in which the action is pending. Upon demand of who will direct the
the objecting party or deponent, the taking of the taking of
deposition shall be suspended for the time necessary deposition
to make a notice for an order. In granting or refusing 3. Rules applicable is
such order, the court may impose upon either party
the of foreign court
or upon the witness the requirement to pay such
4. Allowed if
costs or expenses as the court may deem reasonable.
commission was
Commission an instrument issued by a court of disallowed by the
justice, or other competence tribunal to authorize a foreign country
person to take depositions, or do any other act by
authority of such court or tribunal.

Letter rogatory instrument whereby a foreign court


is informed of pendency of a case and the name of the
witness, and Is requested to cause their depositions
to be taken in due course of law for furtherance of
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

Deposition vs Affidavit appeal from adverse judgment where incorporated


in said appeal is the grounds for assailing the
interlocutory order.
Deposition Affidavit
Exception is the order disallowing the petitioners Pg.
written interrogatories are patently erroneous, hence 49
1. Taking of testimony 1. It may be taken ex
certiorari is warranted.
requires notice to parte
other party 2. It does not need
a) Response to the written interrogatories;
2. May be taken in form such form Consequences of refusal to answer
of question and 3. May or may not
answer based on be used in a Requirements in response to interrogatories:
written examination proceeding
or written a. Answered fully in writing
interrogatories b. Shall be signed and sworn by the person
before authorized making them.
persons;
3. May be used as When to file answer to interrogatories?
evidence pending a
a. Shall file and serve a copy of the answers on
case
the party submitting the interrogatories
within fifteen (15) days after service thereof
b. Unless the court on motion and for good
3.12.2. Written interrogatories to adverse cause shown, extends or shortens the time.
parties (Rule 25) Sec. 2, Rule 25.
If the adverse party fails to properly respond to the
Rule on written interrogatories to adverse parties written interrogatories, he shall be deemed as in
default, and will be subject to judgment by default.
Under the same conditions specified in section 1 of
Rule 23, any party desiring to elicit material and b) Effect of failure to serve written interrogatories
relevant facts from any adverse parties shall:
The effects of failure to serve written
a. File and serve upon the latter written interrogatories:
interrogatories to be answered by the party
served Unless thereafter allowed by the court for good cause
b. If the party served is a public or private shown and to prevent a failure of justice, a party not
corporation or a partnership or association, served with written interrogatories may not be:
by any officer thereof competent to testify in
its behalf. Sec. 1, Rule 25. a. Compelled by the adverse party to give
testimony in open court, or
b. To give a deposition pending appeal. Sec. 6,
Remedy in case of denial of written interrogatories Rule 25.

It is interlocutory in nature, and the extraordinary


remedy of writ of certiorari is generally not an
available remedy to challenge an interlocutory order
of a trial court. The proper remedy in such a case is
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

inadmissible. Lacbayan vs Samoy, GR


Written Interrogatories Written 165427, March 21 2011
Rule 23 Interrogatories Rule 25
a. Deponent is a third a. Directly served to
person not adverse party How can a request by adverse party be made? Pg.
necessarily a party b. No officer to take 50
b. An officer is deposition is At any time after issues have been joined, a party may
required to take required file and serve upon any other party may file and serve
depositions upon any other party a written request for:

1. The admission by the latter of the


genuineness of any material and relevant
document described in and exhibited with
Bill of Particulars Written the request or
Interrogatories Rule 2. The truth of any material and relevant
25 matter of fact set forth in the request.
a. Intended for a. Seek to disclose all 3. Copies of the documents shall be delivered
purpose of material and with the request unless copy have already
clarifying relevant facts form been furnished.
ambiguities in a a party
pleading or to state b. Not directed to
with sufficient pleadings, but to a) Implied admission by adverse party
definiteness the material and
allegations in the relevant facts Implied admission rule
pleading within the
Each matter must be denied specifically under oath
b. Direct to the knowledge of
setting forth in detail the reason why he cannot
pleadings with adverse party
truthfully admit or deny. The silence of the defendant
ambiguous
on the plaintiffs request for admission amounts to an
allegations
implied acceptance of the facts set forth therein with
the effect that plaintiffs claim stood undisputed.
3.12.3. Request for admission (Rule 26)

Admission defined, Limitations to the rule

An admission is any statement of fact made by a party The redundant and unnecessarily vexatious nature of
against his interest or unfavorable to the conclusion the petitioners request for admission rendered it
for which he contents or is inconsistent with the facts ineffectual, futile and irrelevant so as to proscribe the
alleged by him. operation of the implied admission. Limos vs Sps.
Odones
Requirements for admission to be admissible:
b) Consequences of failure to answer request for
1. Involve matters of fact and not of law admission
2. Be categorical and definite
3. Be knowingly and voluntarily made If the adverse party fails to answer the request for
4. Be adverse to the admitters interests, written admission, the admission shall be deemed
otherwise it would be self-serving and admitted.
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

The plaintiff may now move for Motion for Judgment


on the Pleadings because there is no more genuine
issue. d) Effect of failure to file and serve request for
admission
What are the actions that can be made by party a Pg.
Effect of failure to file and serve request for
written request for admission is served? 51
admission
Each of the matters of which an admission is
Party who fails to file and serve a request for
requested shall be deemed admitted unless, within a
admission on the adverse party of material and
period designated in the request, the party served
relevant facts at issue which are, or ought to be,
will:
within the personal knowledge of the latter, shall not
a. File and serves upon the party requesting be permitted to present evidence on such facts.
the admission a sworn statement either
denying specifically the matters of which an Exception For good cause shown and to prevent a
admission is requested or setting forth in failure of justice
detail the reasons why he cannot truthfully
either admit or deny those matters which 3.12.4. Production or inspection of documents
shall not be less than 15 days after the
or things (Rule 27)
service thereof. Two motions under Rule 27
b. Within such further time as the court may
allow on motion 1. Motion for production and inspection of
documents and things
2. Motion to allow entry upon a designated
Rule in case of filing an objection place for purposes of inspection, measuring,
and surveying of property
a. Submitted to the court by the party
requested within the period for and prior to
the filing of his sworn statement as Courses of action on the motion for production and
contemplated in the preceding paragraph inspection of documents and things
and
b. His compliance therewith shall be deferred (a) order any party to produce and permit
until such objections are resolved, which the inspection and copying or
resolution shall be made as early as photographing, by or on behalf of the
practicable. moving party, of any designated documents,
papers, books, accounts, letters,
photographs, objects or tangible things, not
c) Effect of admission privileged, which constitute or contain
evidence material to any matter involved in
What are the effects of admission
the action and which are in his possession,
a. It is only for the purpose of the pending custody or control, or
action
(b) order any party to permit entry upon
b. Shall not constitute an admission by him for
designated land or other property in his
any other purpose
possession or control for the purpose of
c. Nor said admission be used against him in
inspecting, measuring, surveying, or
any proceedings.
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

photographing the property or any 3. It can be availed of production of


designated relevant object or operation by motion evidence
thereon. The order shall specify the time, 2. Directed against
place and manner of making the inspection any person which
and taking copies and photographs, and may includes litigants Pg.
prescribe such terms and conditions as are 3. By means of a 52
just. request issued ex
parte
Things that are privileged and cannot be subject of
Rule 27:

1. Privileged communication between husband


and wife, Sec. 24(a) Rule 130 Production and Exception to the Best
2. Between attorney and client Sec. 24 b Rule Inspection of Evidence Rule when
130 Documents the original is in the
3. Between physician and patient, Sec. 24c Rule possession of adverse
130 party under Sec. 3 (b)
4. Communication of public officer and public Rule 130
interest Sec. 24 e, Rule 130
5. Editors may not be compelled to disclose 1. It can be availed of
source of published news through motion 1. It can be done by
6. Voters may not be compelled to disclose 2. Movant has no notice.
whom they voted prior knowledge on 2. Has the knowledge
7. Trade secrets the contents of the contents of the
8. Information contained in tax census returns documents to be documents to be
9. Bank deposits produced produced

Limitations on the remedy of production and


inspection of documents and things 3.12.5. Physical and mental examination of
persons (Rule 28)
Inspection should be limited to those documents
When can the court order it? When mental or
designated with sufficient particularity in the motion
physical condition of a party is in controversy
such that the adverse party can easily identify the
documents he required to procure. Action of the court the action which the action is
pending in its discretion order him to submit to a
Production and Subpoena Duces Tecum physical or mental examination by physician.
inspection of
Requisites for order of examination:
Documents
1. On motion for good cause shown
1. Mode of discovery 1. A writ or process of 2. Upon notice to the party to be examined and
2. Directed against compelling to all other parties
party litigants
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

3. Shall specify the time, place, manner, Consequences in case of refusal to answer any
conditions and scope of examination and the question?
person or persons whom it is to be made.
A party or other deponent refuses to answer any
question upon oral examination the court may: Pg.
What are the rules on findings of physician on 53
1. The examination may be completed on other
examination conducted?
matters or adjourned as the proponent of
If requested by the party examined, the party the question may prefer.
causing the examination to be made shall deliver to 2. The proponent may thereafter apply to the
him a copy of a detailed written report of the proper court of the place where the
examining physician setting out his findings and deposition is being taken, for an order to
conclusions. compel an answer.
3. The same procedure may be availed of when
After such request and delivery, the party causing a party or a witness refuses to answer any
the examination to be made shall be entitled upon interrogatory submitted under Rules 23 or
request to receive from the party examined a like 25.
report of any examination, previously or thereafter
made, of the same mental or physical condition.
Effects if failed to serve answers
What are the effects of submission to examination
1. The court on motion and notice may:
by the party?
2. Strike out all or any part of the pleading of
By requesting and obtaining a report of the that party
examination so ordered or by taking the deposition of 3. Dismiss the action or proceeding
the examiner: 4. Enter a judgment by default against that
party
1. The party examined waives any privilege he 5. In its discretion, order him to pay reasonable
may have in that action or expenses incurred by other, including attys
2. He also waived any privileged on any other fees
involving the same controversy, regarding
the testimony of every other person who has
examined or may thereafter examine him in Judgment by default for failure to file answer to
respect of the same mental or physical interrogatories
examination
Before there could be a judgment by default, the
court must first require an application by the
3.12.6. Consequences of refusal to comply with proponent to compel an answer. Sec. 1, Rule 29.
modes of discovery (Rule 29)

The determination of the sanction a court should


impose for failure of a party to comply with the
modes of discovery rest on the sound discretion of
the court, taking into account the overriding interest
of justice and the circumstances of each case.
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

3.13. TRIAL (Rule 30) 8. Amicable settlement during mediation


before Philippine Mediation Center
Definition judicial process of investigating and 9. Amicable settlement during JDR
determining legal controversies, starting with the 10. Amicable settlement by virtue of ADR
production of evidence by the plaintiff and ending 11. When the parties to any action agree, in Pg.
with his closing arguments. Acosta vs People writing, upon the facts involved in the 54
litigation and submit the case for judgment
Nature of Trial
based on the facts agreement upon without
introduction of evidence, Sec. 6 Rule 30
It is adversarial in character, and which requires
presentation of evidence and witnesses before the
court.
NOTE: Plaintiff must rely on the strength of his own
evidence and not upon the weakness of defendants.
Constitutional right to speedy trial, Sec. 16 Art. III
Even through evidenced adduced by the plaintiff is
1987 Constitution
stronger than defendants, the evidence must still be
It extends to call cases. sufficient to substation his cause of action.

Factors to determine delay: Upon the entry of a case in the trial calendar, the
clerk or court shall
1. Duration of the delay
2. Reason thereof 1. Notify the parties of the date of its trial
3. Assertion of the right or failure to assert it 2. In such manner as shall ensure his receipt of
4. Prejudice caused by such delay that notice at least five (5) days before such
date.

Trial vs Hearing
3.13.1. Adjournments and postponements
Hearing is more broader in scope as it include pre-trial
conference, hearing on motion and trial, while trial is The court may adjourn a trial from day to day, and to
limited only to presentation of evidence and any stated time, as the expeditious and convenient
witnesses before the court. transaction of business may require. Sec. 2, Rule 30.

General rule Trial is necessary to secure a judgment. Limitation -

Exceptions BUT shall have no power to adjourn a trial for a longer


period than one month for each adjournment nor
1. Cases falling under Summary Procedure in more than three months in all except, authorized in
Civil cases writing by the Court Administrator, Supreme Court.
2. Parties entered into amicable settlement or
compromise of their claims Postponement is not a matter of right and addressed
3. Dismissal of action on Rule 16 to sound discretion of the court. Graces vs Valenzuela
4. Dismissal based on Sec 3, Rule 17
5. Dismissal of action for failure to appear Grounds for postponements:
during pre-trial conference, Rule 18
1. Absence of evidence
6. Judgment of pleadings under Rule 34
2. Illness of a party or counsel
7. Summary judgment on Rule 35
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

3.13.2. Requisites of motion to postpone trial 3.13.4. Order of trial; reversal of order

a) For absence of evidence The order of trial is as follows: Sec. 5, Rule 30.

Requisites of motion to postpone trial for absence of Subject to the provisions of section 2 of Rule 31, and
Pg.
evidence: unless the court for special reasons otherwise directs,
55
the trial shall be limited to the issues stated in the pre-
1. A motion for postponement shall be filed trial order and shall proceed as follows:
2. The motion must be supported by an
affidavit or sworn certification showing the a. The plaintiff shall adduce evidence in
a. Materiality or relevancy of support of his complaint;
evidence b. The defendant shall then adduce evidence in
b. That due diligence has been used to support of his defense, counterclaim, cross-
claim and third-party complaints;
procure it
c. The third-party defendant if any, shall
3. If the adverse party admits the facts given in
adduce evidence of his defense,
evidence the trial shall not be postponed
counterclaim, cross-claim and fourth-party
even if he reserved the right to object to the complaint;
admissibility of the evidence. d. The fourth-party, and so forth, if any, shall
adduce evidence of the material facts
pleaded by them;
e. The parties against whom any counterclaim
b) For illness of party or counsel or cross-claim has been pleaded, shall
adduce evidence in support of their defense,
Requisites of motion to postpone trial for illness of
in the order to be prescribed by the court;
party or counsel: f. The parties may then respectively adduce
rebutting evidence only, unless the court, for
1. Motion for postponement must be filed
good reasons and in the furtherance of
2. Motion must be supported by an affidavit or
justice, permits them to adduce evidence
sown certification showing the upon their original case; and
a. Presence of the party or counsel at g. Upon admission of the evidence, the case
the trial is indispensable shall be deemed submitted for decision,
b. That the character of his illness is unless the court directs the parties to argue
such as to render his non- or to submit their respective memoranda or
attendable excusable. any further pleadings.

If several defendants or third-party defendants, and


so forth, having separate defenses appear by
different counsel, the court shall determine the
relative order of presentation of their evidence
3.13.3. Agreed statement of facts
Reversal of order
The parties to any action may agree, in writing, upon
the facts involved in the litigation, and submit the In civil cases
case for judgment on the facts agreed upon, without
the introduction of evidence. If the defendant set-ups an affirmative defense, he
must be the first one to present evidence. Thus, the
If the parties agree only on some of the facts in issue, regular order of trial will be reversed.
the trial shall be held as to the disputed facts in such
order as the court shall prescribe.
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

In criminal cases As used in these Rules, the word "commissioner"


includes a referee, an auditor and an examiner. Sec.
When the accused admits the act or omission charged 1, Rule 32.
in the complaint or information but interposes a
lawful defense, the order of trial may be b) Powers of the commissioner
Pg.
modified.(Criminal cases) Sec. 11, Rule 119.
56
When a reference is made, the clerk shall forthwith
3.13.5. Consolidation or severance of hearing or furnish the commissioner with a copy of the order of
trial (Rule 31) reference. The order may specify or limit the powers
of the commissioner, and may direct him to report
When actions involving a common question of law or only upon particular issues, or to do or perform
fact are pending before the court, particular acts, or to receive and report evidence only
and may fix the date for beginning and closing the
1. it may order a joint hearing or trial of any or hearings and for the filing of his report.
all the matters in issue in the actions;
2. it may order all the actions consolidated, and Subject to other specifications and limitations stated
3. it may make such orders concerning in the order, the commissioner has and shall exercise
proceedings therein as may tend to avoid the power
unnecessary costs or delay. Sec. 1, Rule 31.
1. to regulate the proceedings in every hearing
3.13.6. Delegation of reception of evidence before him and
2. to do all acts and take all measures
Gen Rule The judge of the court shall personally necessary or proper for the efficient
receive the evidence adduced by the parties. Sec. 9, performance of his duties under the order.
Rule 30. 3. He may issue subpoenas and subpoenas
duces tecum,
Exception a. in default or b. ex parte hearings, and 4. swear witnesses, and
c . in case where the parties agreed in writing, the 5. unless otherwise provided in the order of
court may delegate the reception of evidence to its reference, he may rule upon the
clerk of court who is member of the bar. admissibility of evidence.

The clerk of court cannot make a ruling on objections. The trial or hearing before him shall proceed in all
respects as it would if held before the court.
These objections shall be resolved by the court upon
c) Commissioners report; notice to parties and
submission of his report and transcripts within 10
hearing on the report
days from the termination of the hearing.
Report of the commissioner

Upon the completion of the trial or hearing or


3.13.7. Trial by commissioners (Rule 32) proceeding before the commissioner, he shall file
with the court his report in writing upon the matters
a) Reference by consent or ordered on motion submitted to him by the order of reference.

By written consent of both parties, the court may When his powers are not specified or limited, he shall
order any or all of the issues in a case to be referred set forth his findings of fact and conclusions of law in
to a commissioner to be agreed upon by the parties his report. He shall attach thereto all exhibits,
or to be appointed by the court. affidavits, depositions, papers and the transcript, if
any, of the testimonial evidence presented before
him. Sec. 9, Rule 32.
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

Notice to the parties of filing of report 3.14.4. Waiver of right to present evidence

Upon the filing of the report, If the motion is granted but on appeal the order of
dismissal is reversed he shall be deemed to have
1. the parties shall be notified by the clerk, and waived the right to present evidence
Pg.
2. they shall be allowed ten (10) days within
57
which to signify grounds of objections to the 3.14.5. Demurrer to evidence in a civil case
findings of the report, if they so desire. versus demurrer to evidence in a criminal case

Objections to the report based upon grounds which


were available to the parties during the proceedings Demurrer to evidence Demurrer to evidence
before the commissioner, other than objections to in civil case in criminal case
the findings and conclusions therein, set forth, shall
not be considered by the court unless they were 1. A motion for leave 1. May be with or
is not required without leave of
made before the commissioner. Sec. 10, Rule 32.
2. If granted, it is court
Hearing upon report appealable. 2. If granted, not
3. If denied, the appealable
Upon the expiration of the period of ten (10) days defendant may still because it will
referred to in the preceding section, the report shall present evidence. constitute double
be set for hearing, after which the court shall issue an 4. The plaintiff has to jeopardy already.
order adopting, modifying, or rejecting the report in file a motion to 3. If denied, the
whole or in part, or recommitting it with instructions, deny the Demurrer application is with
or requiring the parties to present further evidence to Evidence leave of court, the
before the commissioner or the court. Sec. 11, Rule accused may still
32. present evidence.
If without leave, he
cannot anymore
present evidence.
3.14. DEMURRER TO EVIDENCE (Rule 33) 4. The court can motu
propio deny the
3.14.1. Ground Demurrer to
Evidence
Upon the facts and the law the plaintiff has shown no
right to relief.

When made

After the plaintiff has completed the presentation of


his evidence, the defendant may move for dismissal
under the rule on Demurrer to Evidence.

3.14.2. Effect of denial

If his motion is denied he shall have the right to


present evidence

3.14.3. Effect of grant

The grant will dismiss the complaint.


REMEDIAL LAW REVIEWER Chapter III Civil Procedure

3.15. JUDGMENTS AND FINAL ORDERS (Rule pendency of the appeals. The grounds are excess of
36) jurisdiction or grave abuse of discretion.
Judgment is the final ruling by a court of competent Grave abuse of discretion such capricious and
jurisdiction regarding the rights or other matters whimsical exercise of judgment that is equivalent to
submitted to it in action or proceeding. It is Pg.
lack of jurisdiction. 58
synonymous with the term decision.
Order for support pedente lite is an interlocutory
Constitutional basis of valid judgment order.
Sec. 14, Art. II of the Constitution KINDS OF JUDGMENT
No court shall render a decision A2-C4-D4-F-E-M-N-P-S7-V
without stating clearly and distinctly
the facts and the law on which it is 1. Judgment upon compromise
based. 2. Judgment upon confession
3. Judgment upon merits
No petition for review or motion for 4. Clarificatory judgment
reconsideration of a decision of the 5. Judgment nunc pro tunc
court shall be refused due course or 6. Judgment sin perjuico
denied without stating the legal 7. Judgment by default
basis therefore. 8. Judgment on pleadings
9. Summary judgments
Final order is an order issued by the court which
10. Several judgments
disposes of the subject matter in its entirely or
11. Separate
terminates a particular proceeding or action, leaving
12. Special judgments
nothing more to be done except to enforce by
13. Judgment for specific acts
execution what the court has determined, but the
14. Judgment on demurrer to evidence
latter does not completely dispose of the case but
15. Conditional judgment
leave something else to be decided upon.
16. Final judgment
Interlocutory order one that does not finally 17. Final and execotry judgment
dispose of the case and does not end the Courts task 18. Void judgment
of adjudicating the parties content and determining 19. Amended and clarified judgment
their rights and liabilities as regards each other, but 20. Supplemental judgment
obviously indicates that other things remain to be 21. Alternative judgment
done by the court. 22. Deficiency judgment
23. Declaratory judgment
Interlocutory refers to something intervening
between the commencement and the end of the suit
which decides some point or matter but is not a final 1. Judgment upon compromise
decision for the whole controversy.
A judgment based on a compromise
Note the remedy from interlocutory order is not an agreement.
appeal but special civil action of certiorari. The reason
A compromise agreement is a contract
is to avoid multiplicity of appeals in a single action,
whereby the parties , by making reciprocal
which necessarily suspends the hearing and the
concessions avoid a litigation or put an end
decision on the merits of the action during the
to one already commenced.
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

Requisites upon the record evidence of judicial action


which has been actually taken.
1. Consent of the contracting parties
2. Object certain that is the subject The court has no power to construe what the
matter of the contract judgment means, but only to enter the
Pg.
3. Cause of the obligation that is record of judgment formerly rendered, but 59
established. which had not been entered of record as
4. The terms and conditions must not rendered.
be contrary to law, morals, good
customs, public policy and public It does not render a new judgment.
order. Else, it produces no legal
6. Judgment sin perjuico
effect at all.
Nature it is immediately final and excutory Judgment rendered by the court without
and cannot be subject to appeal. prejudice to the refilling of the case.

2. Judgment by confession 7. Judgment by default. ( Sec 3, Rule 9 )

A judgment made based on the voluntary act A judgment by default is a judgment


of confession of the defendant himself. rendered by the court based on the
presentation of the plaintiffs evidenc ex
A judgment by confession is not a plea but
parte after the defendant has been declared
an affirmative and voluntary act of the
in default.
defendant himself. The court exercises a
certain amount of supervision over the entry A judgment by default is a judgment
of judgment, as well as equitable jurisdiction rendered against the defendant for his
over their subsequent status. failure to file an answer.

3. Judgment upon merits- 8. Judgment on pleadings

A judgment when it amounts to declaration A judgment based exclusively upon the


of the respective rights and duties of the allegation appearing in the pleadings of the
parties base done the disclosed facts. parties and annexes, if any, without
consideration of any evidence aliunde.
4. Clarificatory Judgment-
However, when it appear that all the
A judgment made by the court to remove the
materials allegations of the complaint were
ambiguity of an earlier judgment which is
admitted in the answer for some of them
difficult to execute and comply because of
were either denied or disputed, and the
ambiguity of terms. It is done through a
defendant has set up certain special
motion by a party.
defenses which, if proven, would have effect
5. Judgment nunc pro tunc (now for then) of nullifying plaintiffs main cause of action,
judgment on pleadings cannot be rendered.
The office or function of this judgment is to
record some act of the court done at a 9. Summary Judgment Rule 35
former time which was not then carried into
A procedural device resorted to in order to
the record, and the power of the court to
avoid long drawn out litigations and useless
make such entries is restricted to placing
delays where the pleadings on the file show
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

that there are no genuine issues of fact to be It directs a party to execute conveyance of
tried. land, or to deliver deeds or other documents
or to perform any other specific acts in
10. Several Judgment Sec. 4, Rule 36 connection there with but which acts can be
performed by persons other than the said Pg.
It is a judgment rendered by the court
party. 60
whenever proper in an action against several
defendants against one or more of them, 14. Judgment on demurrer to evidence, Rule 33
leaving the action to proceed against the
others. It is a judgment rendered by the court on the
ground of insufficiency of evidence after the
11. Separate Judgment Sec. 5, Rule 36 plaintiff has rested its case. The nature is like
motion to dismiss.
It is a judgment rendered by the court when
more than one claim for relief is presented 15. Conditional judgment
in an action, the court, at any stage, upon a
determination of the issues material to a Where the judgment is indefinite, or
particular claim and all counterclaims arising requires the performance of a condition, the
out of the transaction or occurrence which is court must first determine whether or not
the subject matter of the claim, may render the condition imposed therein had been
a separate judgment disposing of such claim. complied with before it could issue writ of
execution.
12. Special judgments Sec. 11, Rule 39
16. Final judgment Sec. 47 Rule 39
When a judgment requires the performance
of any act other than those mentioned in the Once a judgment becomes final and
two preceding sections, a certified copy of executory, all the issues between the parties
the judgment shall be attached to the writ of are deemed resolved and laid to rest.
execution and shall be served by the officer
upon the party against whom the same is The prevailing party is entitled to a writ of
rendered, or upon any other person execution, the issuance of which is the trial
required thereby, or by law, to obey the courts ministerial duty.
same, and such party or person may be
17. Final and executor judgment
punished for contempt if he disobeys such
judgment. (9a) A final and executor judgment is one
rendered by the court when there is no
The special judgment in this section is one
motion for reconsideration or appeal is filed,
which requires the performance of any act
or the same has already been denied with
other than the payment of money or the sale
finality.
or delivery of real or personal property,
which a party must personally do because What is the remedy? Petition for relief form
his personal qualifications and final order under Rule 38 on the ground of
circumstances have been taken into extrinsinc fraud and error or jurisdiction.
considered. Refusal to comply is punishable
by contempt. 18. Void judgment

13. Judgment for specified acts, Sec. 10 Rule 39 A judgment is null and void when the court
which rendered it had no power to grant the
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

relief or no jurisdiction over the subject injunction, the same is equivalent to an


matter or over the parties or both. action for prohibition against public officers.

Effects of void judgment it is a not a


decision in contemplation of law and hence,
Pg.
can never be executor. 3.15.1. Judgment without trial 61

19. Amended and clarified judgment The same can be had in Summary Judgments.

A judgment in which the lower court makes Sec. 1, of Rule 35 provides that a party seeking to
a thorough study of the original judgment recover upon a claim, counterclaim, or cross-claim or
and renders the amended and clarified to obtain a declaratory relief may, at any time after
judgment only after considering all the the pleading in answer thereto has been served,
factual and legal issues. move with supporting affidavits, depositions or
admissions for a summary judgment in his favor upon
The amended and clarified decision is an all or any part thereof.
entirely new decision which supersedes the
original decision. In small claims and summary proceedings, the
judgment can be had even without trial.
20. Supplemental judgment
Judgment can be also attained in case of settlement
A kind of judgment which serves to bolster of a case.
or adds something to the primary decision.
3.15.2. Contents of a judgment
Amended judgment vs Supplemental
The judgment or order determining the merits of the
judgment
case must be:
21. Alternative judgment
1. In writing
Rule when the dispositive part of a final 2. Directly and personally prepared by the
order of decision is definite, clear and judge
unequivocal and can be wholly given effect 3. Stating clearly and distinctly the facts and
without need of interpretation or the law on which it is based
construction, the same is considered as the 4. Signed by him
judgment of the court, to the exclusion of 5. Filed with the clerk of court
anything said in the body thereof.

22. Deficiency judgment The filing of judgment or order with clerk of court
constitutes rendition of judgment.
A contingent claim and must be filed with
probate court where the settlement of the Two essential parts of a decision:
estate of the deceased mortgagor is
1. Body this is where the facts and the law on
pending, within the period of time fixed for
which it is based are stated.
the filling of claims.
2. Decetal portion the controlling part.
23. Declaratory judgment
The omission of either makes the judgment in
Where the petition for declaratory judgment violative of rules of court and constitution.
is coupled with a prayer for issuance of
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

Findings of facts Statement of fact, not to the claim, counter-claim, cross claim, and declaratory
conclusions of law. The decision should not only state relief has been served.
the ultimate facts but also should specify the
supporting evidentiary facts. The claimant may either seeking to recover:
Pg.
Findings of facts and law are important part of due a) A claim 62
process. b) Counterclaim
c) Cross-claim
Effects of lack of jurisdiction on the judgment it is
d) To obtain declaratory relief
null and void and may be attacked anytime. It creates
no rights and produces no effects.
The motion must be supported with affidavits,
3.15.3. Judgment on the pleadings depositions or admissions for summary judgment.

Grounds for judgments on the pleadings b) For the defendant

1. Where an answer fails to tender an issue A defendant against whom the claims are asserted
2. Admits the material allegations of the may any time move for summary judgment.
adverse party's pleading,.
Requirements for summary judgment-
The court may; on motion of that party, direct
judgment on such pleading. a) Motion shall be served at least 10 days
before the time specified for the hearing
Where there can be no Judgment on the Pleadings
b) The adverse party may serve opposing
However, in actions for declaration of nullity or affidavits, deposition or admissions at least
annulment of marriage or for legal separation, the 3 days before the hearing.
material facts alleged in the complaint shall always be c) After the hearing, the judgment sought shall
proved be rendered forthwith if the pleadings,
supporting affidavits, depositions on file,
3.15.4. Summary judgments (Rule 35) show that there is no genuine issue as to any
material fact and that the moving party is
Summary judgment A procedural device resorted
entitled to a judgment as a matter of law.
to in order to avoid long drawn out litigatins and
Except as to the amount of damages.
useless delays where the pleadings on the file show
that there are no genuine issues of fact to be tried.

Genuine issue is such issue of fact which require c) When the case not fully adjudicated
presentation of evidence as distinguished from sham,
fictitious, contrived or false claim. If the judgment cannot be rendered on the whole
case the court shall
Even the pleading raised an issue but the affidavits
show that it has no genuine issue, a summary 1. Ascertain what material facts exist without
judgment is available. substantial controversy and what are
actually and in good faith controverted
a) For the claimant 2. It shall thereupon make an order specifying
the facts that appear without substantial
When the claimant may move for summary controversy, including the extent to which
judgment? After the pleading in answer to the
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

the amount of damages or other relief is not 3.15.5. Judgment on the pleadings versus
in controversy summary judgments
3. Directing such further proceedings in the
action as are just.
Judgment on the Summary Judgments
4. The facts so specified shall be deemed pleadings Pg.
established, and the trial shall be conducted 63
on the controverted facts accordingly.
1. The answer does 1. There is an issue
not tender an issue tendered in the
2. Basis is the answer, but it is not
d) Affidavits and attachments
pleadings alone genuine or real
3. Three days notice issue.
Supporting and opposing affidavits shall be made on:
of hearing 2. The basis are
4. Entire case is pleadings,
a) Personal knowledge
terminated affidavits,
b) Shall set forth facts as would be admissible 5. Only the plaintiff or depositions and
in evidence the defendants as admissions
c) Show affirmatively that the affiant is far as the 3. Ten days notice
competent to testify as to the matters stated counterclaim, rule
therein cross-claim or 4. May be terminated
d) Certified true copies of all papers or parts third-party partially
thereof referred to in the affidavits shall be complaint is 5. Either plaintiff or
attached thereto or served therewith. concerned can file defendant may file
the same the same
6. If filed by the 6. After filing of an
Rule in affidavits in bad faith plaintiff, the same answer by the
must be made after adverse party
This speaks of: the pleading in
answer to the
a) Affidavits in bad faith claim, counter-
b) Solely for the purpose of delay claim, cross claim,
and declaratory
relief has been
served. If by the
In which case, the court then shall:
defendant, it may
be filed any time
Order the offending party or counsel to pay to the
other party the amount of the reasonable expenses
which the filing of the affidavits caused him to incur
including attorney's fees, 3.15.6. Rendition of judgments and final orders

It may, after hearing further adjudge the offending Rendition of judgment is the filing of the same with
party or counsel guilty of contempt. the clerk of court.

A judgment or final order determining the merits of


the case shall be in writing personally and directly
prepared by the judge, stating clearly and distinctly
the facts and the law on which it is based, signed by
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

him, and filed with the clerk of the court. Sec. 1, Rule Cosntitutional basis
36.
Sec. 14, Art. II of the Constitution
3.15.7. Entry of judgment and final order (Rule
36) No court shall render a decision
Pg.
without stating clearly and distinctly 64
When the entry can be done?
the facts and the law on which it is
If no appeal or motion for new trial or reconsideration based.
is filed within the time provided in the rules.
No petition for review or motion for
The date of finality of judgment is the date of its entry. reconsideration of a decision of the
It shall contain the dispositive part of the judgment, court shall be refused due course or
signed by the clerk with a certificate the judgment has denied without stating the legal basis
become final and executory. therefore.

A summary judgment that satisfies the requirements Purpose of motion for reconsideration is to point
of final orders shall be considered as res judicata also. out the findings and conclusions of the decision
which, in the movants view, are not supposed by law
An order or judgment is deemed final when it finally
or evidence. The movant is therefore, confined to the
disposes of pending action, so that nothing more can
amplification or further discussion of the same issue
be done with it in the trial court.
already passed upon by the court.
Immutability of judgment
Right of the defendant to file motion for new trial or
A decision that has acquired its finality becomes reconsideration
immutable and unalterable and may no longer be
modified in any respect, even is the modification is The parties may not deprive each other the right to
meant to correct erroneous conclusions of fact or law file a motion for reconsideration or move for a new
and whether it will be made by the court that trial or an execution pending appeal by immediate
rendered it or by the highest court of the land. filing a notice of appeal.

a) Grounds

3.16. POST JUDGMENT REMEDIES Grounds for Motion for New Trial

a) FAME, which ordinary prudence could not


3.16.1. Motion for new trial or reconsideration (Rule
36) have guarded against and by reason of which
such aggrieved party has been probably
Motion for new trial it is a complete retrial of the impaired in his rights.
case after judgment has been rendered based on the b) Newly discovered evidence, which he could
grounds specified in the sec. 1, Rule 37. not, within reasonable diligence have
discovered and produced at the trial, and if
It is an application for relief requesting that the judge presented, would probably alter the result.
set aside the judgment and order a new trial on the
basis that the trial was improper or unfair due to the
specified errors occurred.
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

Newly discovered evidence Affidavit of merit a sworn statement which states


the nature of character of FAME on which the motion
These must not be raised for the first time on appeal. for new trial is based, or the facts constituting the
Under the rules of court, the requisites of newly movants good and substantial defense for valid
discovered evidence are: causes of action. Pg.
65
1. The evidence was discovered after trial Grounds for Motion for Reconsideration-
2. Such evidence could not have been
discovered and produced at the trial with a) Damages awarded are excessive
reasonable diligence b) The evidence is insufficient to justify the
3. It is material, and not merely cumulative, decision or final order
corroborative or impeaching, and is of such c) The decision or final order is contrary to law
weight that, if admitted, will probably
change the judgment. b) When to file
Extrinsic fraud refers to any fraudulent act of the
Motion for new trial - Within the period for taking an
prevailing party in litigation which is committed
appeal.
outside the trial of the case, whereby the
unsuccessful party has been prevented from
Motion for reconsideration Within the same period
exhibiting fully his case.
An appeal is being taken by filing a notice of appeal
Accident It is an event that takes place without and it is perfected upon the expiration of the last day
ones foresight or expectation. An event hat of the period to appeal by any party.
proceeded from an unknown cause; or is unusual
effect of a known cause and therefore, not expected. In cases where a record on appeal is required, appeal
is taken by filing a notice of appeal and the record on
Mistake An error in action, a blunder. An incorrect appeal and the appeal is perfected upon approval of
belief held by some concerned about a fact involved the record on appeal.
in a transaction or a proceeding, or an incorrect
opinion about the law which governs the transactions Motion for extension of time to file motion for
and proceedings. reconsideration does not toll the period to appeal,

Rule Client is bound by the counsels mistake. The extension if proper is the procedural infirmity was
Exception where the lawyers gross negligence not entirely attributable to the fault or negligence of
would result in grave injustice of depriving his client the petitioner.
due process of law.
c) Denial of the motion; effect
Excusable negligence A negligence is excusable
where it is caused by failure to receive notice of the A decision is final and executory after 15 days of
action or trial, by a genuine and excusable mistake or receipt of denial of first MR.
miscalculation, by reliance upon assurance given by
those upon whom the party had a right to depend, as Exception: If a motion for leave to file and admit a
the adverse party or counsel retained in the case, or second motion for reconsideration is granted, the 2 nd
a competent adviser, that would necessary for him to MR is not anymore prohibited.
take an active part in the case.
d) Grant of the motion; effect

Effect of granting of motion for new trial


REMEDIAL LAW REVIEWER Chapter III Civil Procedure

1. Original judgment or final order shall be


Rule 37 (MR) Rule 52 ( MR)
vacated
2. The action shall stand for trial de novo;
3. The recorded evidence taken upon the a) Available only a) Available only
former trial, insofar as the same is material in the trial in appellate Pg.
and competent to establish the issues, shall courts, RTC, courts, CA 66
be used at the new trial without retaking the MTC, MCTTC b) Does not
same. b) Provides provide for
ground for specific
excessive grounds
e) Remedy when motion is denied, fresh 15-day damages, c) Shall be
period rule evidence is resolved within
insufficient to 90 days when
An order denying a motion for new trial or justify the the court
reconsideration is not appealable, the remedy being decision, or declares it
an appeal from the judgment or final order
decision is submitted for
Neypes or Fresh Period Rule contrary to resolution
law
From the case of Domingo Neypes vs Court of c) Shall be
Appeals To standardize the appeal period provided resolved
in the Rules and to afford litigants fair opportunity to within 30 days
appeal their cases, the Court has deemed it practical from the date
to allow a fresh period of 15 days within which to file it was
the notice of appeal to be counted from receipt of the submitted for
order denying the motion for new trial, motion for resolution
reconsideration whether full or partial, or any final
order or resolution.

3.16.2. Appeals

Rule 37 (New Trial) Rule 53 ( New Trial ) In general


a) Available only in a) Available only in
The right to appeal is not part of due process but a
the trial courts, appellate courts, CA mere statutory privilege that has to be exercised only
RTC, MTC, MCTTC b) Grounded only on in the manner and in accordance with the provisions
b) Provides ground newly discovered of law
for FAME evidence
c) Shall be resolved c) Shall be resolved Final Order Interlocutory Order
within 30 days within 90 days
from the date it when the court Disposes of the subject Does not completely
was submitted for declares it matter in its entirely or disposes of the case but
resolution submitted for terminates a particular leaves something to be
resolution proceeding or action, decided upon
leaving nothing more
to be done except to Deals with preliminary
enforce by execution matters and the trial on
the merits is yet to be
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

what the court has held and the judgment counterclaims, cross-claims and third party
determined rendered. complaints, while the main case is pending,
unless the court allows an appeal therefrom
8. An order dismissing an action without
prejudice
Pg.
Certain rules on appeal 67
c) Remedy against judgments and orders which are
a) There can be no trial de novo anymore. The not appealable
appellate courts must decide on the basis of
In any of the foregoing circumstances, the aggrieved
the record, except when the proceedings
party may file an appropriate civil action as provided
where not duly recorded
in Rule 65.
b) There can be no new parties
c) There can be no change of theory
Rationale of non-appealable character of
d) there can be no new matters
interlocutory order - allowing appeals from
e) There can be amendments of pleadings to
interlocutory orders would result in the sorry
conform to the evidence before the trial
spectacle of a case being subject of
court
counterproductive ping pong to and from appellate
f) The liability of solidarity defendant who did
court as often as trial court is perceived to have made
not appeal is not affected by the appeal by
an error in any of its interlocutory rulings.
solidarity debtor
g) Appeal by the guarantor does not inure to
d) Modes of appeal
the principal
h) RTC cannot award to the appellant on his
The three modes of appeal-
counterclaim more than the amount of
damages beyond the jurisdiction of the MTC.
1. Ordinary appeal. The appeal to the Court
i) Appellate court cannot dismiss the appealed
of Appeals in cases decided by the Regional
case for failure to prosecute because the Trial Court in the exercise of its original
case must be based on records jurisdiction shall be taken by filing a notice of
appeal with the court which rendered the
a) Judgments and final orders subject to appeal judgment or final order appealed from and
serving a copy thereof upon the adverse
Appeal may only be taken from judgments or final party. No record on appeal shall be required
orders that completely dispose of a case. except in special proceedings and other
cases of multiple or separate appeals where
b) Matters not appealable law on these Rules so require. In such cases,
the record on appeal shall be filed and
1. Order denying motion for new trial or served in like manner.
reconsideration 2. Petition for review. The appeal to the
2. Order denying a petition for relief and any Court of Appeals in cases decided by the
similar motion seeking relief from judgment Regional Trial Court in the exercise of its
3. An interlocutory order appellate jurisdiction shall be by petition for
4. Order disallowing or dismissing an appeal review in accordance with Rule 42.
5. An order denying a motion to set aside 3. Appeal by certiorari / petition for review on
judgment by consent, confession or certiorari. In all cases where only
questions of law are raised or involved, the
compromise, on the ground of fraud,
appeal shall be to the Supreme Court by
mistake, duress, or any other ground
petition for review on certiorari in
6. An order of execution accordance with the Rule 45.
7. A judgment or final order for or against one
or more several parties or in separate claims,
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

e) Issues to be raised on appeal 7. When the findings of fact are conclusions


without citation of specific evidence on
Whether or not the appellant has filed a motion for which they are based;
new trial in the court below, he may include in his 8. When the CA manifestly overlooked certain
assignment or errors any question of law or fact that relevant facts not disputed by the parties Pg.
has been raised in the court below and which is within
and which, if properly considered, would 68
the issues framed by the parties Sec. 15, Rule 44.
justify a different conclusion,
1) In an Ordinary Appeal, the appeal raises the 9. Went eh findings of fact of the CA are
questions of fact or mixed questions of fact and law. premised on the absence of evidence and
are contradicted by evidence on record.
2) In Petition for Review, the appeal raises questions 10. When the findings are contrary to those of
of fact, of law or mixed questions of fact and law. trial court.
11. Adverse decision in a petition for writ of
3) In a Petition for Review on Certiorari, the appeal amparo;
raises purely questions of law. 12. Adverse decision in a petition for writ of
habeas corpus;
Mixed question of law and of facts; purely question
13. Adverse judgment in a writ of kalikasan;
of law remedy

Where a litigant files an appeal raises only questions f) Period of appeal


of law with the CA, CA should dismiss the appeal
What is the period of taking an appeal-
outright as the appeal is not reviewable by that court.
1. 15 days after the notice to the appellant of
Question of fact exists when the doubt centers on the
the judgment or final order appealed from;
truth or falsity of alleged facts while question of law
exists if the doubt centers on what the law is on a or
certain set of facts. 2. Where a record on appeal is required, the
appellant shall file a notice of appeal and
Where the Supreme Court can act upon questions of record on appeal within 30 days after the
fact notice of judgment or final order

The exception applies only in the presence of


extremely meritorious circumstances like: The effect of filing MR on period to appeal-

1. When the inference made is manifestly The period of appeal shall be interrupted by a timely
mistaken, absurd or impossible. motion for new trial or reconsideration.
2. When there is a grave abuse of discretion
Limitation - No motion for extension of time to file a
3. When the findings are grounded entirely on
motion for new trial or reconsideration shall be
speculations, surmises or conjectures.
allowed. (n)
4. When the judgment of the Ca is based on
misapprehension of facts Exception for suspension of period to appeal in filing
5. When eh findings of fact of the lower courts MR-
are conflicting
6. When the CA, in making its findings, went 1. To serve substantial justice Habaluyas
beyond the issues of the case and the same Enterprises vs Japson
is contrary to the admissions of both 2. When the procedural infirmity was not
appellant and appellee. entirely attributable to the fault or
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

negligence of the petitioner Barnes vs


Padilla

g) Perfection of appeal Pg.


69
Appeal is deemed perfected when:

1. A partys appeal by notice of appeal is


deemed perfected as to him upon filing of
the notice of appeal in due time
2. A partys appeal by record on appeal is
deemed perfected as to him with respect to
the subject matter thereof upon the
approval of the record on appeal filed in due
time.

Effect of perfection of appeal-

In appeals by notice of appeal, the court loses


jurisdiction over the case upon the perfection of
appeals filed in due time and the expiration of time to
appeal of the other parties

What are the residual powers of the court?

Prior to the transmittal of the original record of the


record on appeal, the court may issue:

1. Orders for protection and preservation of


the rights of the parties which do not involve
any matter litigated by appeal;
2. Approve compromises
3. Permit appeals of indigent litigants
4. Order execution pending appeal in
accordance with Sec. 2 of Rule 39.
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

Table of Appeals

Rule 40 Rule 41 Rule 42 Rule 43 Rule 45

APPEAL FROM APPEAL FROM THE PETITION FOR APPEALS FROM THE APPEAL BY Pg.
METROPOLITAN / REGIONAL TRIAL REVIEW WITH COURT OF TAX CERTIORARI TO THE 70
MUNICIPAL TRIAL COURTS TO THE COURT OF APPEALS APPEALS AND SUPREME COURT
COURTS TO THE COURT OF APPEALS (RTC in exercise of QUASI-JUDICIAL
REGIONAL TRIAL COURT (RTC in exercise of Appellate AGENCIES TO THE
original jurisdiction Jurisdiction to CA) COURT OF APPEALS
to CA)

When to 15 days for Notice of 15 days for Notice of 15 days from notice 15 days d from notice 15 days from notice
Appeal Appeal / 30 days for Appeal / 30 days for of the decision, may of the award, of judgment or final
Record on Appeal Record on Appeal be extended for 15 judgment, final order order or resolution
days. or resolution, or from appealed from, may
the date of its last be extended for 30
publication, if days.
publication is
required by law for
its effectivity, maybe
extended for 15
days.

How to Notice of Appeal / Notice of Appeal / Verified Petition for Verified Petition for Verified Petition for
Appeal Record on Appeals Record on Appeals Review Review Review
(required in special (required in special
proceedings and multiple proceedings and
appeals ) multiple appeals )

Certification Not required Not required Required Required Required


against non-
forum
shopping

Issues Questions of fact, of law, Questions of fact, of Questions of fact, of Questions of fact, of General rule,
or mixed questions of law, or mixed law, or mixed law, or mixed questions of law.
fact and law questions of fact and questions of fact questions of fact and
law and law law.
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

Quasi-judicial power defined the term which depriving the litigants the privilege of review
applies to the discretion, etc., of public administrative by an appellate tribunal. Hence, the CA has
officers or bodies, who are required to investigate still authority to review decisions of the NLR
facts, or ascertain the existence of facts, holding but not on Rule 43, but through petition for
hearings, and draw conclusions from them, as a basis certiorari under Rule 65 a remedy wherein Pg.
for their official function and to exercise discretion of the SC exercises concurrent jurisdiction with 71
judicial nature.
CA.
Decision of the Ombudsman in administrative cases
is reviewable by the CA under Rule 43.
Petition for Review on Certiorari (Rule 45)
Findings of facts of the Ombudsman in administrative
cases are accorded with respect and finality. Article VIII, Sec. 5, (2) Review, revise, reverse, modify,
or affirm on appeal or certiorari, as the law or the
Decision of Department of Agrarian Reform is Rules of Court may provide, final judgments and
reviewable under Rule 43. orders of lower courts in:

Sec. 61 of RA No. 6657 clearly mandates that judicial a) All cases in which the constitutionality or
review of DAR Secretary decisions, orders or validity of any treaty, international or
resolutions are governed by rule 43 of ROC. executive agreement, law, presidential
decree, proclamation, order, instruction,
Excluded quasi-judicial bodies under the coverage of ordinance, or regulation is in question.
the rules b) All cases involving the legality of any tax,
impost, assessment, or toll, or any penalty
1. Court of Tax Appeals It must be noted
imposed in relation thereto.
however, that by virtue of AM No 05-11-07-
c) All cases in which the jurisdiction of any
CTA 2005 of RA 9282 or Revised Rules of
lower court is in issue.
Court of Appeals, as amended, Sec. 1 Rule 16
d) All criminal cases in which the penalty
thereof, a party adversely affected by a
imposed is reclusion perpetua or higher.
decision of the CTA en banc may appeal
e) All cases in which only an error or question
therefrom by filing with SC a verified petition
of law is involved.
for review on certiorari under Rule 45.
2. Central Board of Assessment Appeals Sec
2(e), Rule 4 of Revised Rules of CTA, the CTA
Rule 45 Rule 65
en banc will also exercise exclusive appellate
jurisdiction over cases involving the a) Petition is based on a. The petition raises
assessment and taxation of real property questions of law the issue whether
which the or not the lower
originally decided by the provincial or city
appellant desires court acted
board of assessment of appeals. the court to resolve without or in
3. Labor Cases with NLRC the procedure in b) It is a mode of excess of
labor cases enunciated by the Court in case appeal involving jurisdiction or gave
of St. Martin Funeral Home vs NLRC has the review of abuse of
remained to be prevailing rule and authority judgment, award jurisdiction
governing judicial review of decisions and or final order on b. Directed against
the merits the interlocutory
interlocutory orders of the NLRC. The
c) It is a mode of order of the court
peculiar decision has reached the court appeal which prior to appeal
solely for the purpose of drastically centers on the form judgment or
reducing the workload of the SC without review on the where there is no
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

merits of final appeal or any other A judgment, resolution or final order of the COMELEC
order of the lower plain, speedy and may be brought by the aggrieved party to the SC on
court involving adequate remedy certiorari under Rule 65 in relation to Rule 64, by filing
pure questions of c. Is an original action
the petition within 30 days from notice.
law that dwells on the
d) Must be made jurisdictional errors Pg.
Review of Judgment or Final Orders from Civil 72
within the of whether the
Service Commission
reglementary lower court acted
period for appeal without or in
A judgment, final order or resolution of the Civil
or within 15 days excess of its
Service Commission may be taken to the CA under
from the receipt of jurisdiction or with
Rule 43. Note the difference between the mode of
the assailed grave abuse of
appeal from a judgment of the CSC and the mode of
judgment jurisdiction
appeal from the judgments of other constitutional
e) Stays thed. May be filed not
commissions.
judgment, award, later than 60 days
or order appealed from the notice of
Review of Judgment or Final Orders from Civil
from judgment, order or
f) Petition and resolution sought Service Commission
respondent are the to be assailed
original parties to e. Unless a writ of A judgment, resolution or final order of the
the action, and the preliminary Commission on Audit may be brought by the
lower court or injunction or aggrieved party to the SC on certiorari under Rule 65
quasi-judicial temporary in relation to Rule 64, by filing the petition within 30
agency is not restraining order days from notice.
impleaded shall have been
g) Prior filing of issued, does not 3.16.3. Relief from judgments, orders and other
motion for stay the challenged proceedings (Rule 38)
reconsideration is proceeding
not required f. The parties are the Petition for relief a legal remedy whereby a party
h) The appellate court aggrieved party seeks to set aside a judgment rendered against him
is in the exercise of against the lower by a court whenever he was unjustly deprived of
its appellate court or quasi- hearing or was prevented from taking an appeal
jurisdiction and the judicial agency and because of FAME.
power of review the prevailing
parties Requirements-
g. Motion for
reconsideration is 1. Verified,
required as a
2. Filed within sixty (60) days after the
general rule.
h. The higher court petitioner learns of the judgment, final
exercises original order, or other proceeding to be set aside,
jurisdiction under and not more than six (6) months after such
its power of control judgment or final order was entered, or such
and supervision proceeding was taken
over the 3. Must be accompanied with affidavits
proceedings of the
showing the fraud, accident, mistake, or
lower court
Appeal from Constitutional Bodies excusable negligence relied upon (Affidavit
of merit)
Review of Judgment or Final Orders from COMELEC 4. State the facts constituting the petitioner's
good and substantial cause of action or
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

defense, as the case may be. (Affidavit of Inunction is allowed


merit)
Injunction is allowed, but there must be a bond in
favor of the adverse party conditioned that if the
a) Grounds for availing of the remedy petition is dismissed or the petitioner fails on the trial
Pg.
of the case upon its merits, he will pay the adverse 73
Final and executory decision can only be annulled by party all damages and costs that may be awarded to
a petition to annul the same on the ground of him by reason of the issuance of such injunction or
extrinsic fraud lack or jurisdiction, or by a petition for the other proceedings following the petition
relief from a final order of judgment under the Rule
38. BUT, such injunction shall not operate to discharge or
extinguish any lien which the adverse party may have
b) Time to file petition acquired upon, the property, of the petitioner

The petition for relief shall be filed within sixty (60)


days after the petitioner learns of the judgment, final 3.16.4. Annulment of judgments or final orders
order, or other proceeding to be set aside, and not and resolutions (Rule 47)
more than six (6) months after such judgment or final
a) Grounds for annulment
order was entered, or such proceeding was taken

c) Contents of petition The annulment may be based only on the grounds of


extrinsic fraud and lack of jurisdiction.
1. Must be accompanied with affidavits
showing the fraud, accident, mistake, or Extrinsic fraud shall not be a valid ground if it was
excusable negligence relied upon (Affidavit availed of, or could have been availed of, in a motion
for new trial or petition for relief.
of merit)
2. State the facts constituting the petitioner's
b) Period to file action
good and substantial cause of action or
defense, as the case may be. (Affidavit of If based on extrinsic fraud, the action must be filed
merit) within four (4) years from its discovery; and if based
on lack of jurisdiction, before it is barred by laches or
If the petition is sufficient in form and substance to estoppe
justify relief, the court in which it is filed, shall-
c) Effects of judgment of annulment
1. Shall issue an order requiring the adverse
A judgment of annulment shall set aside the
parties to answer the same within fifteen
questioned judgment or final order or resolution and
(15) days from the receipt thereof.
render the same null and void, without prejudice to
2. The order shall be served in such manner as the original action being refiled in the proper court.
the court may direct, together with copies However, where the judgment or final order or
of the petition and the accompanying resolution is set aside on the ground of extrinsic
affidavits. fraud, the court may on motion order the trial court
to try the case as if a timely motion for new trial had
been granted therein.
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

3.16.5. Collateral attack of judgments 3.17.2. When execution shall issue

A collateral attack is an attack on the judgment is Execution shall issue as:


made as an incident in said action.
a. A matter of right, Pg.
This is proper only when the judgment, on its face, is
b. Or motion, 74
null and void, as where it is patent that the court
which rendered said judgment has no jurisdiction.
When to appeal
Examples:
Upon a judgment or order that disposes of the action
1. A petition for certiorari under Rule 65 is a or proceeding upon the expiration of the period to
direct attack. It is filed primarily to have an appeal therefrom if no appeal has been duly
order annulled. perfected
2. An action for annulment of a judgment is
likewise a direct attack on a judgment. If the appeal has been duly perfected and finally
3. A motion to dismiss a complaint for resolved:
collection of a sum of money filed by a
corporation against the defendant on the
The execution may forthwith be applied for
ground that the plaintiff has no legal
capacity to use is a collateral attack on the in the court of origin,
corporation. A motion to dismiss is
incidental to the main action for sum of a. On motion of the judgment obligee,
money. It is not filed as an action intended to b. Submitting therewith certified true copies of
attack the legal existence of the plaintiff. the judgment or judgments or final order or
orders sought to be enforced and of the entry
thereof,
c. With notice to the adverse party.
3.17. EXECUTION, SATISFACTION, AND
EFFECT OF JUDGMENT (Rule 39)
The appellate court may:
Execution Remedy afforded by law for the
a. On motion in the same case, when the
enforcement of a judgment. Its object is to obtain
interest of justice so requires,
satisfaction of the judgment on which the writ is
b. Direct the court of origin to issue the writ of
issued. It issues by order of a court a quo, on motion
execution. (n)
of the judgment oblige, upon finality or order sought
to be enforced.
General rule Execution as a matter of right,
requisites-
3.17.1. Difference between finality of judgment
for purposes of appeal; for purposes of
execution 1. It will be a matter or right only when,
2. The judgment has become final and
For purposes of appeal, an order is final if it disposes executor,
of the action as opposed to an interlocutory order
3. When the judgment debtor has renounced
which leaves something to be done in the trial court
or waived his right of appeal
with respect to the merits of the case.
4. When the period for appeal has lapsed with
For purposes of execution, an order is final or an appeal having been filed, the appeal
executory after the lapse of the reglementary period
to appeal and no such appeal has been perfected.
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

resolved and the records to the case have Mandamus is available in case of execution of final
been returned to the court of origin. and executory judgment. Valenzuela vs Court of
Appeals 1993, 226 SCRA 306
Exception to the general rule- Execution pending
appeal on the existence of good reasons. Good The remedy for issuance of order of execution is Pg.
reasons are compelling circumstances that justify the Certiorari under Rule 65, Sec. 1 75
immediate execution lest the judgment becomes
illusory. Execution of a judgment or final order pending
appeal:
Effect of finality the winning party has the
correlative right to enjoy the finality of the resolution a. On motion of the prevailing party
of his case by the execution and satisfaction of b. With notice to the adverse party filed in the
judgment which is the life of the law. trial court
c. While it has jurisdiction over the case and is
As a rule, once the judgment has become final and in possession of either the original record or
executor, the court cannot refuse to issue a writ of the record on appeal, as the case may be, at
execution, except: the time of the filing of such motion,

1. When the subsequent facts and Said court may, in its discretion, order
circumstances transpire which render the execution of a judgment or final order even
execution unjust and impossible before the expiration of the period to
2. On equitable grounds, as when there has appeal.
been a change in the situation of parties
which makes the execution equitable After the trial court has lost jurisdiction:
3. Where the judgment has been novated by
the parties The motion for execution pending appeal may be filed
4. When a petition for relief or an action to in the appellate court.
enjoin the judgment is filed and a
preliminary injunction I sprayed for and Discretionary execution may only issue:
granted
5. Where the judgment has become dormant, a. Upon good reasons
the 5 year period under Sec. 6 of this rule b. To be stated in a special order after due
having been expired with judgment being hearing.
revived.
6. Where the judgment turns out to be Execution of several, separate or partial judgments:
incomplete.
a. A several,
b. Separate or
Motion for execution need not be served on the c. Partial judgment
defeated party; granting of writ of execution is a
matter of right not a violation of due process. May be executed under the same terms and
conditions as execution of a judgment or
Issuance of writ of execution is trial courts final order pending appeal.
ministerial duty once decision is final
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

Execution pending appeal is a matter of discretion appeal could be obtained through the mere filing of
such bond.
When an appeal had been duly perfected, execution
of the judgment, whether wholly or partially, was not 3.17.3. How a judgment is executed
a matter or right, but discretion provided good Pg.
reasons therefor existed. Associated Anglo-American a) Execution by motion or by independent action 76
Tobacco Corporation vs CA, April 23, 2010
A final and executory judgment or order may be
Good Reasons, meaning compelling circumstances executed:
that justify immediate execution lest the judgment
becomes illusory. a. On motion within five (5) years from the date
of its entry.
Requisites for execution pending appeal- b. By action, after the lapse of such time, and
before it is barred by the statute of
1. There must be a motion by the prevailing limitations,
party
2. There must be good reasons for issuing the The revived judgment may also be enforced:
writ of execution
3. Good reasons must be stated in special a. By motion within five (5) years from the date
order. Maceda, Jr vs DBP, 313 SCRA 233 of its entry
b. By action before it is barred by the statute of
Execution pending appeal is not applicable in a land limitations.
registration proceeding. Top Management Programs
Corporation vs Luis Fajardo, June 15, 2011 Once a judgment becomes final and executory, the
prevailing party can have it executed as a matter of
Residual power of the Court of Appeals, execution right by mere motion within five years from the date
pending appeal under Rule 42 of entry of judgment. If the prevailing party fails to
have the decision enforced by a motion after the
Rule 42 of the Rules of Court governs the appeal of a lapse of five years, the said judgment is reduced to a
decision of the RTC rendered in the exercise if its right of action which must be enforced by the
appellate jurisdiction; the appeal is made by filing a institution of a complaint in regular court within ten
petition for review with the CA. years from the time the judgment becomes final.

Despite the filing of a petition with CA, however, Rule Instances of execution by motion after five years;
42 grants the RTC residual jurisdiction to order Excluded period in computing the time for execution
execution pending appeal, so long as:
The court held that in computing the time limit for
1. The CA has not yet given due course to the enforcing a final judgment, the general rule is that
petition there should not be included the time when the
2. The requirements of Sec. 2, Rule 39 are execution is stayed, either by agreement of the
observed. ALPA-PCM Inc, vs Vincent parties for a definite time, by injunction, by taking of
Bulasao, March 19, 2012 an appeal or writ of error so as to operate as
supersedeas, by death of the party or otherwise.
Posting of a bond to answer for damage is not alone
a sufficient reason, otherwise execution pending Any interruption or delay occasioned by the debtor
will extend the time within which the writ may be
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

issued without scire facias. Thus, the time during c) Execution of judgments for money
which the execution is stayed should be excluded,
and the said time will be extended by any delay Immediate payment on demand.
occasioned by the debtor.
The officer shall enforce an execution of a judgment Pg.
The five year period of execution may be extended for money by: 77

Where the delay is through no fault of the prevailing Demanding from the judgment obligor the
party but due to the delay caused or occasioned by immediate payment of the full amount
actions of the judgment obligor for his benefit or stated in the writ of execution and all lawful
advantage. Camacho vs CA, 287 SCRA 311, 1998 fees.

Nature of action for revival of judgment The judgment obligor shall-

Action for revival of judgment is a new and a. Pay in cash,


independent action, different and distinct from either b. Certified bank check payable to the
recovery of the property case or reconstitution case, judgment obligee,
wherein the cause of action is the decision itself and c. Or any other form of payment acceptable to
not the merits of the action upon which judgment is the latter,
sought to be enforced. The amount of the judgment debt
under proper receipt directly to the
Execution by motion or independent action is not judgment obligee or his authorized
applicable in a petition for writ of possession representative if present at the
time of payment.
The rule on execution by motion or by independent
action under Sec. 6 Rule 39 applies only to civil actions The lawful fees shall be-
and not to special proceedings such as an ex parte
petition for the issuance of writ of possession as it is Handed under proper receipt to the
not the nature of civil action. Sps. Topacio vs Banco executing sheriff who shall turn over the said
Filipino Savings and Mortage Bank, Nov. 17, 2010 amount within the same day to the clerk of
court of the court that issued the writ.
b) Issuance and contents of a writ of execution
If the judgment obligee or his authorized
The writ of execution shall: representative is not present to receive payment, the
judgment obligor shall-
a. Issue in the name of the Republic of the
Philippines from the court which granted the Deliver the aforesaid payment to the
motion; executing sheriff.
b. State the name of the court, the case a. The latter shall turn over all the
number and title, the dispositive part of the amounts coming into his possession
subject judgment or order; and within the same day to the clerk of
c. Require the sheriff or other proper officer to court of the court that issued the
whom it is directed to enforce the writ writ, or
according to its terms, in the manner b. if the same is not practicable,
hereinafter provided: deposit said amounts to a fiduciary
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

account in the nearest government a. Personal properties, if any, and


depository bank of the Regional then on the
Trial Court of the locality. b. Real properties if the personal
properties are insufficient to
The clerk of said court shall: answer for the judgment. Pg.
78
Thereafter arrange for the remittance of the The sheriff shall sell only a sufficient portion of the
deposit to the account of the court that personal or real property of the judgment obligor
issued the writ whose clerk of court shall which has been levied upon.
then deliver said payment to the judgment
obligee in satisfaction of the judgment. When there is more property of the judgment obligor
than is sufficient to satisfy the judgment and lawful
The excess, if any, shall: fees,

a. Be delivered to the judgment obligor He must sell only so much of the personal or
real property as is sufficient to satisfy the
While the lawful fees shall: judgment and lawful fees.

Be retained by the clerk of court for Real property, stocks, shares, debts, credits, and
disposition as provided by law. other personal property, or any interest in either real
or personal property,
In no case shall the executing sheriff demand that any
payment by check be made payable to him. May be levied upon in like manner and with
like effect as under a writ of attachment.
Satisfaction by levy.
Garnishment of debts and credits.
If the judgment obligor cannot pay all or part of the
obligation in cash, certified bank check or other mode The officer may levy on:
of payment acceptable to the judgment obligee, the
officer shall: a. Debts due the judgment obligor and
b. Credits, including bank deposits, financial
Levy upon the properties of the judgment interests, royalties, commissions and
obligor of every kind and nature whatsoever c. Personal property not capable of manual
which may be disposed, delivery in the possession or control of third
a. Of for value and parties.
b. Not otherwise exempt from
execution Levy shall be made by:
Giving the latter the option to immediately
choose which property or part thereof may Serving notice upon the
be levied upon, sufficient to satisfy the
judgment. a. Person owing such debts or
b. Having in his possession or control
If the judgment obligor does not exercise the option, such credits to which the judgment
obligor is entitled.
The officer shall first levy on the
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

The garnishment shall cover only such If a judgment directs a party to execute:
amount as will satisfy the judgment and all
lawful fees. 1. A conveyance of land or personal property,
or
The garnishee shall: 2. To deliver deeds or other documents, or Pg.
3. To perform, any other specific act in 79
Make a written report to the court within connection therewith,
five (5) days from service of the notice of
garnishment stating whether or not the And the party fails to comply within the time
judgment obligor has sufficient funds or specified,
credits to satisfy the amount of the The court may direct the act to be done at
judgment. the cost of the disobedient party by some
other person appointed by the court and the
If not, the report shall state how much funds or act when so done shall have like effect as if
credits the garnishee holds for the judgment obligor. done by the party.

The garnished amount in cash, or certified bank check If real or personal property is situated within the
issued in the name of the judgment obligee, shall be Philippines,

Delivered directly to the judgment obligee the court in lieu of directing a conveyance
within ten (10) working days from service of thereof may by an order divest the title of
notice on said garnishee requiring such any party and vest it in others, which shall
delivery, except the lawful fees which shall have the force and effect of a conveyance
be paid directly to the court. executed in due form of law. (10a)

In the event there are two or more garnishees Sale of real or personal property.
holding deposits or credits sufficient to satisfy the
judgment, the judgment obligor, if available, If the judgment be for the sale of real or personal
property,
Shall have the right to indicate the garnishee
or garnishees who shall be required to 1. To sell such property, describing it, and
deliver the amount due, otherwise, the 2. Apply the proceeds in conformity with the
choice shall be made by the judgment judgment. (8[c]a)
obligee.
(c) Delivery or restitution of real property.
The executing sheriff shall observe the same
procedure under paragraph (a) with respect to 1. The officer shall demand of the person
delivery of payment to the judgment obligee. against whom the judgment for the delivery
or restitution of real property is rendered
and all persons claiming rights under him to
peaceably vacate the property within three
d) Execution of judgments for specific acts (3) working days, and
2. Restore possession thereof to the judgment
Conveyance, delivery of deeds, or other specific acts; obligee,
vesting title.
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

Otherwise, the officer shall: e) Execution of special judgments

a. Oust all such persons therefrom with the When a judgment requires the performance of any
assistance, if necessary, of appropriate act other than those mentioned in the two
peace officers, and preceding sections,- Pg.
b. Employing such means as may be reasonably 80
necessary to retake possession, and place 1. Aa certified copy of the judgment shall be
the judgment obligee in possession of such attached to the writ of execution and
property. 2. Shall be served by the officer upon the party
c. Any costs, damages, rents or profits awarded against whom the same is rendered, or upon
by the judgment shall be satisfied in the any other person required thereby, or by
same manner as a judgment for money. law, to obey the same, and
(13a)
Such party or person may be punished for contempt
(d) Removal of improvements on property subject of if he disobeys such judgment
execution.
f) Effect of levy on third persons
When the property subject of the execution contains
The levy on execution shall:
improvements constructed or planted by the
judgment obligor or his agent,:
1. Create a lien in favor of the judgment obligee
over the right, title and interest of the
The officer shall not destroy, demolish or
judgment obligor in such property at the
remove said improvements
time of the levy,

Except upon:
Subject to liens and encumbrances then existing.
1. Special order of the court,
3.17.4. Properties exempt from execution
2. Issued upon motion of the judgment obligee
3. After the hearing and Except as otherwise expressly provided by law, the
4. After the former has failed to remove the following property, and no other, shall be exempt
same within a reasonable time fixed by the from execution:
court. (14a)
(a) The judgment obligor's family home as
(e) Delivery of personal property. provided by law, or the homestead in which
he resides, and land necessarily used in
In judgment for the delivery of personal property, connection therewith;

The officer shall take possession of the same (b) Ordinary tools and implements
and forthwith deliver it to the party entitled personally used by him in his trade,
thereto and satisfy any judgment for money employment, or livelihood;
as therein provided. (8a)
(c) Three horses, or three cows, or three
carabaos, or other beasts of burden, such as
the judgment obligor may select necessarily
used by him in his ordinary occupation;
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

(d) His necessary clothing and articles for But no article or species of property mentioned in this
ordinary personal use, excluding jewelry; section shall be exempt from execution issued upon a
judgment recovered for its price or upon a judgment
(e) Household furniture and utensils of foreclosure of a mortgage thereon. Sec. 13, Rule
necessary for housekeeping, and used for 39.
Pg.
that purpose by the judgment obligor and his 81
3.17.5. Proceedings where property is claimed by
family, such as the judgment obligor may
third persons
select, of a value not exceeding one hundred
thousand pesos; If the property levied on is claimed by any person
other than the judgment obligor or his agent, and
(f) Provisions for individual or family use such person makes an affidavit of his title thereto or
sufficient for four months; right to the possession thereof, stating the grounds of
such right or title, and serves the same upon the
(g) The professional libraries and equipment officer making the levy and copy thereof, stating the
of judges, lawyers, physicians, pharmacists, grounds of such right or tittle, and a serves the same
dentists, engineers, surveyors, clergymen, upon the officer making the levy and a copy thereof
teachers, and other professionals, not upon the judgment obligee, the officer shall not be
exceeding three hundred thousand pesos in bound to keep the property, unless such judgment
value; obligee, on demand of the officer, files a bond
approved by the court to indemnity the third-party
(h) One fishing boat and accessories not claimant in a sum not less than the value of the
exceeding the total value of one hundred property levied on. In case of disagreement as to such
thousand pesos owned by a fisherman and value, the same shall be determined by the court
by the lawful use of which he earns his issuing the writ of execution.
livelihood;
Bond is required
(i) So much of the salaries, wages, or
earnings of the judgment obligor for his No claim for damages for the taking or keeping of the
personal services within the four months property may be enforced against the bond unless
preceding the levy as are necessary for the the action therefor is filed within one hundred twenty
support of his family; (120) days from the date of the filing of the bond.

(j) Lettered gravestones; Officer is not liable if bond is filed

(k) Monies, benefits, privileges, or annuities The officer shall not be liable for damages for the
accruing or in any manner growing out of taking or keeping of the property, to any third-party
any life insurance; claimant if such bond is filed. Nothing herein
contained shall prevent such claimant or any third
(l) The right to receive legal support, or person from vindicating his claim to the property in a
money or property obtained as such separate action, or prevent the judgment obligee
support, or any pension or gratuity from the from claiming damages in the same or a separate
Government; action against a third-party claimant who filed a
frivolous or plainly spurious claim.
(m) Properties specially exempted by law.
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

When the writ of execution is in favor of the (a) The judgment obligor; or his successor in
Republic of the Philippines interest in the whole or any part of the
property;
When the writ of execution is issued in favor of the
Republic of the Philippines, or any officer duly
(b) A creditor having a lien by virtue of an Pg.
representing it, the filing of such bond shall not be
attachment, judgment or mortgage on the 82
required, and in case the sheriff or levying officer is
property sold, or on some part thereof,
sued for damages as a result of the levy, he shall be
subsequent to the lien under which the
represented by the Solicitor General and if held liable
property was sold. Such redeeming creditor
therefor, the actual damages adjudged by the court
is termed a redemptioner. Sec. 27, Rule 39
shall be paid by the National Treasurer out of such
funds as may be appropriated for the purpose. Sec.
Time and manner of, and amounts payable on,
16, Rule 39
successive redemptions; notice to be given and filed.
a) In relation to third-party claim in attachment and
replevin The judgment obligor, or redemptioner, may redeem
the property from the purchaser, at any time within
Remedies available to a third person not party to the one (1) year from the date of the registration of the
action but whose property is the subject of execution:
certificate of sale, by paying the purchaser the
1. Terceria - By making an affidavit of his title amount of his purchase, with the per centum per
thereto or his right to possession thereof, month interest thereon in addition, up to the time of
stating the grounds of such right or title. redemption, together with the amount of any
2. Exclusion or release of the property - Upon assessments or taxes which the purchaser may have
application of the third person through a paid thereon after purchase, and interest on such last
motion to set aside the levy on attachment, named amount at the same rate; and if the purchaser
the court shall order a summary hearing for
be also a creditor having a prior lien to that of the
the purpose of determining whether the
sheriff has acted rightly or wrongly in the redemptioner, other than the judgment under which
performance of his duties in the execution of such purchase was made, the amount of such other
the writ of attachment. lien, with interest.
3. Motion for intervention a motion for
intervention may be filed before the Property so redeemed may again be redeemed within
rendition of judgment by the trial court.
sixty (60) days after the last redemption upon
4. Accion Reivindicatoria - The third party
claimant is not precluded by Sec. 14, Rule 57 payment of the sum paid on the last redemption, with
from vindicating his claim to the property in two per centum thereon in addition and the amount
the same or in a separate action. He may file of any assessments or taxes which the last
a separate action to nullify the levy with redemptioner may have paid thereon after
damages resulting from the unlawful levy redemption by him, with interest on such last named
and seizure. This action may be a totally amount, and in addition, the amount of any liens held
distinct action from the former case.
by said last redemptioner prior to his own, with
interest. The property may be again, and as often as
3.17.6. Rules on redemption
a redemptioner is so disposed, redeemed from any
Who may redeem the property sold previous redemptioner within sixty (60) days after the
last redemption, on paying the sum paid on the last
Real property sold as provided in the last preceding previous redemption, with two per centum thereon in
section, or any part thereof sold separately, may be addition, and the amounts of any assessments or
redeemed in the manner hereinafter provided, by the taxes which the last previous redemptioner paid after
following persons: the redemption thereon, with interest thereon, and
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

the amount of any liens held by the last redemptioner 1. the judgment remain unsatisfied, in whole or
prior to his own, with interest. in part, and
2. upon proof to the satisfaction of the court
Written notice is required which issued the writ, that a person,
corporation, or other juridical entity has
Pg.
Written notice of any redemption must be given to property of such judgment obligor or is 83
indebted to him,
the officer who made the sale and a duplicate filed
with the registry of deeds of the place, and if any
The court may, by an order, require such
assessments or taxes are paid by the redemptioner or
person, corporation, or other juridical entity,
if he has or acquires any lien other than that upon or any officer, or member thereof, to appear
which the redemption was made, notice thereof must before the court or a commissioner
in like manner be given to the officer and filed with appointed by it, at a time and place within
the registry of deeds; if such notice be not filed, the the province or city where such debtor
property may be redeemed without paying such resides or is found, and be examined
assessments, taxes, or liens. concerning the same.

3.17.7. Examination of judgment obligor when The service of the order shall bind all credits due the
judgment is unsatisfied judgment obligor and all money and property of the
judgment obligor in the possession or in the control
When the return of a writ of execution issued against of such person corporation, or juridical entity from
property of a judgment obligor, or any one of several the time of service; and the court may also require
obligors in the same judgment, shows that the notice of such proceedings to be given to any party to
judgment remains unsatisfied, in whole or in part, the action in such manner as it may deem proper. Sec.
37, Rule 39.
1. the judgment obligee, at anytime after such
return is made, 3.17.9. Effect of judgment or final orders
2. shall be entitled to an order from the court
which rendered the said judgment, The effect of a judgment or final order rendered by a
3. requiring such judgment obligor to appear court of the Philippines, having jurisdiction to
and be examined concerning his property pronounce the judgment or final order, may be as
and income before such court or before a follows:
commissioner appointed by it at a specified
time and place; and In case of a judgment or final order against a specific
4. proceedings may thereupon be had for the thing, or in respect to the probate of a will, or the
application of the property and income of administration of the estate of a deceased person,
the judgment obligor towards the
or in respect to the personal, political, or legal
satisfaction of the judgment.
condition or status of a particular person or his
But no judgment obligor shall be so required to relationship to another,
appear before a court or commissioner outside the
province or city in which such obligor resides or is The judgment or final order is conclusive upon the
found. title to the thing, the will or administration or the
condition, status or relationship of the person,
3.17.8. Examination of obligor of judgment however, the probate of a will or granting of letters of
obligor administration shall only be prima facie evidence of
the death of the testator or intestate;
When the return of a writ of execution against the
property of a judgment obligor shows that:
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

In other cases,

the judgment or final order is, with respect to the 3.18. PROVISIONAL REMEDIES
matter directly adjudged or as to any other matter
that could have been missed in relation thereto,
3.18.1. Nature of provisional remedies
Pg.
conclusive between the parties and their successors Provisional remedies can be availed of at the
84
in interest, by title subsequent to the commencement commencement of the action, or at the time of filing
of the action or special proceeding, litigating for the of the complaint or by motion.
same thing and under the same title and in the same
capacity; and Provisional remedies are temporary, auxiliary, and
ancillary remedies resorted to by litigants to preserve
In any other litigation between the same parties or or protect their rights or interests while the main
their successors in interest, that only is deemed to action is pending, to secure judgment, to preserve the
have been adjudged in a former judgment or final status quo, or to preserve the subject matter of the
order which appears upon its face to have been so
action.
adjudged, or which was actually and necessarily
included therein or necessary thereto.
Purposes of provisional remedies
3.17.10. Enforcement and effect of foreign 1. To preserve or protect their rights or
judgments or final orders interests while the main action is pending
2. To secure judgment,
The effect of a judgment or final order of a tribunal of
3. To preserve the status quo, or
a foreign country, having jurisdiction to render the
4. To preserve the subject matter of the action.
judgment or final order is as follows:

In case of a judgment or final order upon a specific Kinds of provisional remedies under the Rules-
thing,
1. Preliminary attachment Rule 57
2. Preliminary injunction Rule 58
The judgment or final order, is conclusive upon the
3. Receivership Rule 59
title to the thing, and
4. Replevin Rule 60
5. Support pendent lite Rule 61
In case of a judgment or final order against a person,

The judgment or final order is presumptive evidence


Other provisional remedies under the rules
of a right as between the parties and their successors
promulgated by the Supreme court:
in interest by a subsequent title.
a. Environmental protection order ( just like
How to repel foreign judgment or final order TRO in environmental cases ), AM No 09-6-
8-SC, Sec. 8, Rule 2, Part II
In either case, the judgment or final order may be
repelled by evidence of a want of jurisdiction, want of b. Writ of Amparo AM No. 07-9-12, Rules on
notice to the party, collusion, fraud, or clear mistake
Writ of Amparo
of law or fact. Sec. 48, Rule 39.

1. Temporary Protection order Sec.


14(a)
2. Inspection Order Sec. 14(a)
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

3. Production Order Sec. 14(a) 2. Preliminary attachment against


4. Witness Protection Order Sec. 14(a) property or garnishment of funds in
custody of bank or a third person
c. Writ of Habeas Data AM No. 08-1-16-SC 3. Appointment of a receiver
4. Detention, preservation, delivery or Pg.
1. Inspection Order Sec. 14 inspection of property 85
2. Production Order Sec. 14 5. Assistance in the enforcement of an
interim measure of protection
d. Declaration of Nullity Absolute Nullity of granted by the arbitral tribunal,
Void Marriages and Annulment of Void which the latter cannot enforce
Marriages, AM No. 02-11-10-SC, 2003, and effectively
Provisional Orders AM No. 02-11-12, 2003
h. Civil forfeiture, assets preservation, and
1. Spousal Support, Sec. 2onRule on freezing of monetary instrument, property,
Provisional Orders or proceeds, representing, involving, or
2. Child Support, Sec., 3 relating to an unlawful activity or money
3. Child Custody, Sec. 4 laundering offense under RA 9160, as
4. Visitation Rights, Sec. 5 amended. AM No. 5-11-04
5. Hold Departure Order, Sec. 6
6. Order of Protection, Sec. 6 1. Asset preservation order, Sec. 11,
Title III, AM No. 05-11-04
e. Custody of Minors and Writ of Habeas
Corpus in relation to Custody of Minors, AM
No. 03-04-04, 2003 Courts which can grant provisional remedies

1. Provisional Order awarding Supreme Court, CA, RTC, MTC, McTC, MTC can issue
custody, Sec. 13 the provisional remedies:
2. Temporary Visitation Rights, Sec. 15
1. Attachment
3. Hold Departure Order, Sec. 16
2. Injunction
4. Protection Order, Sec. 17
3. Receivership, and
4. Replevin
f. Violence against women and children, AM
No. 04-10-11, 2004
The support pedente lite can only be issued by
1. Protection Order (TRO) Sec. 7. Regional Trial Court/Family Court since an action for
2. Barangay Protection Order, Sec. 42. support can only be filed with it being an action
subject matter of which is incapable of pecuniary
g. Alternative Dispute Resolution AM No. estimation.
070-11-08, 2009
3.18.2. Jurisdiction over provisional remedies
Interim Measure of Protection, Rule 5.6: The court which grants or issues a provisional remedy
is the court which has jurisdiction over the main
1. Preliminary injunction directed action.
against a party to arbitration
Even an inferior court may grant a provisional remedy
in an action pending with it and within its jurisdiction.
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

4. In an action against a party who has been


guilty of a fraud in contracting the debt or
3.18.3. Preliminary attachment (Rule 57) incurring the obligation upon which the
Preliminary attachment is a provisional remedy action is brought, or in the performance
issued upon order of the court where the action is thereof; Pg.
pending, to be levied upon the property or properties 5. In an action against a party who has 86

of the defendant therein, the same to be held removed or disposed of his property, or is
thereafter by the sheriff as security for the about to do so, with intent to defraud his
satisfaction of whatever judgment might be rendered creditors; or
in said action in favor of the attaching creditor against 6. In an action against a party who does not
the defendant, Virata vs Aquino, Sept 10. 1973 reside and is not found in the Philippines, or
on whom summons may be served by
Nature of attachment Purely statutory remedy publication. (1a)

The provisions thereof must be strictly construed.


When preliminary attachment can be availed of-
Courts have consistently held that no court has no
authority to issue writ of attachment without express At the commencement of the action or at any time
statutory permission. before entry of the judgment, a plaintiff or any proper
party may have the property of the adverse party
a) Grounds for issuance of writ of attachment
attached as security for satisfaction of any judgment
Grounds for preliminary attachment- that may be recovered in the cases enumerated
above.
1. In an action for the recovery of a specified
amount of money or damages, other than The mere change in the name of the plaintiff in the
moral and exemplary, on a cause of action amended complaint does not affect the validity of
arising from law, contract, quasi-contract, the attachment.
delict or quasi-delict against a party who is
about to depart from the Philippines with Attachment is not available if the property is in
intent to defraud his creditors; possession of the attaching creditor. Calo vs Roldan,
2. In an action for money or property 76 Phil 445
embezzled or fraudulently misapplied or
Attachment is available if the defendant disposing
converted to his own use by a public officer,
his properties, to evade the payment of his
or an officer of a corporation, or an attorney,
indebtedness to the plaintiff. The subsequent lifting
factor, broker, agent, or clerk, in the course
of the writ upon filing of a counterbond by the
of his employment as such, or by any other
defendant did not ipso facto make the writ unlawful.
person in a fiduciary capacity, or for a willful
violation of duty;
Lien obtained by attachment is equivalent to a
3. In an action to recover the possession of
vested interest, an actual and substantial security
property unjustly or fraudulently taken,
affording specific security for satisfaction of debt, put
detained or converted, when the property,
in a suit, which constitutes a cloud in the title. Even
or any part thereof, has been concealed,
though inchoate, it is a lien in a real sense.
removed, or disposed of to prevent its being
Government, et. al vs Mercado
found or taken by the applicant or an
authorized person;
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

Preference of attachment over an unsecured debt, All damages which he may sustain by reason of the
attachment, if the court shall finally adjudge that the
Not even a judgment on an unsecured debt could applicant was not entitled thereto.
prevail over a prior attachment.
d) Rule on prior or contemporaneous service of
Pg.
Attachment is inferior to the mortgage of the summons
87
consortium bank
When the contemporaneous service of summons
Properties of a non-resident defendant in the are not required In levy on attachment-
Philippines can be attached, through the process of
The requirement of prior or contemporaneous
garnishment or attachment.
service of summons shall not apply:
b) Requisites
1. Where the summons could not be served
Requirements for issuance of writ of attachment: personally or by substituted service despite
diligent efforts, or
When it appears by the affidavit of the applicant, or 2. The defendant is a resident of the Philippines
of some other person who personally knows the facts temporarily absent therefrom, or
that: 3. The defendant is a non-resident of the
Philippines, or
1. That a sufficient cause of action exists,
2. That the case is one of those mentioned in
section 1 hereof, The action is one in rem or quasi in rem.
3. That there is no other sufficient security for
the claim sought to be enforced by the e) Manner of attaching real and personal property;
action, when property attached is claimed by third person
4. That the amount due to the applicant, or the
How can property be attached-
value of the property the possession of
which he is entitled to recover, is as much as
The sheriff enforcing the writ shall without delay and
the sum for which the order is granted above
with all reasonable diligence attach, to await
all legal counterclaims.
judgment and execution in the action, only so much
5. The affidavit, and the bond required by the
of the property in the Philippines of the party against
next succeeding section, must be duly filed
whom the writ is issued, not exempt from execution,
with the court before the order issues
as may be sufficient to satisfy the applicant's demand,
unless the former makes a deposit with the court
from which the writ is issued, or gives a counter-bond
c) Issuance and contents of order of attachment;
executed to the applicant, in an amount equal to the
affidavit and bond
bond fixed by the court in the order of attachment or
The party applying for the order must thereafter give to the value of the property to be attached, exclusive
a bond executed to the adverse party in the amount of costs.
fixed by the court in its order granting the issuance of
What is the remedy of the party against whom the
the writ, conditioned that:
writ was issued-
1. The latter will pay all the costs which may be
adjudged to the adverse party and A party against whom the writ was issued may make
a deposit with the court from which the writ is issued,
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

or gives a counter-bond executed to the applicant, in and page in the registration book where the
an amount equal to the bond fixed by the court in the certificate is registered, and the registered
order of attachment or to the value of the property to owner or owners thereof.
be attached, exclusive of costs.
Duty of the Registry of Deeds after levy on Pg.
What are the requirements before the sheriff can attachment- 88
effect levy on attachment-
The registrar of deeds must:
No levy on attachment pursuant to the writ issued
under section 2 hereof shall be enforced unless it is 1. Index attachments filed under this section in
preceded, or contemporaneously served by: the names of the applicant, the adverse
party, or the person by whom the property
1. Service of summons is held or in whose name it stands in the
2. Cop of the complaint records.
3. Applicants affidavit and bond 2. If the attachment is not claimed on the
4. The order and writ of attachment, on the entire area of the land covered by the
defendant within the Philippines certificate of title, a description sufficiently
accurate for the identification of the land or
interest to be affected shall be included in
Real property:
the registration of such attachment

Real property, or growing crops thereon, or any


interest therein, standing upon the record of the Personal property:
registry of deeds of the province in the name of the
Stocks or shares, or an interest in stocks or shares, of
party against whom attachment is issued, or not
any corporation or company:
appearing at all upon such records, or belonging to
the party against whom attachment is issued and held 1. By leaving with the president or managing
by any other person, or standing on the records of the agent thereof, a copy of the writ.
registry of deeds in the name of any other person, by: 2. A notice stating that the stock or interest of
the party against whom the attachment is
1. Tiling with the registry of deeds a copy of the
issued is attached in pursuance of such writ;
order, together with a description of the
property attached, and
Stocks and shares of the defendant may be
2. A notice that it is attached, or that such real
attached if their situs is within the
property and any interest therein held by or
Philippines. The situs of corporation stocks
standing in the name of such other person
and shares is within the PH if the corporation
are attached, and
is domiciled therein.
3. By leaving a copy of such order, description,
and notice with the occupant of the
property, if any, or with such other person or Debts and credits, including bank deposits, financial
his agent if found within the province. interest, royalties, commissions, and other property
4. Where the property has been brought under not capable of manual delivery by:
the operation of either the Land Registration
a. Leaving with the person owing such debts, or
Act or the Property Registration Decree, the
having in his possession or under his control,
notice shall contain a reference to the
such credit or other personal property, or
number of the certificate of title, the volume
with his agent, a copy of the writ.
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

b. Leaving a notice that the debts owing by him What are the effects of the discharge?
to the party against whom attachment is
issued, and the credits and other personal Upon the discharge of an attachment in accordance
property in his possession, or under his with the provisions of this section the discharge has
control, belonging to said party, are attached the following effects: Pg.
in pursuance of such writ. 89
1. The property attached, or the proceeds of
any sale thereof, shall be delivered to the
party making the deposit or giving the
f) Discharge of attachment and the counter-bond
counter-bond, or to the person appearing on
What is the remedy of the party whose property has his behalf
been attached? 2. The deposit or counter-bond aforesaid
standing in place of the property so released.
After a writ of attachment has been enforced, the
party whose property has been attached, or the
person appearing on his behalf, may move for the Remedy of the applicant if the counter-bond is
discharge of the attachment wholly or in part on the insufficient or failed to file additional bond-
security given.
Should such counter-bond for any reason be found to
Discharge by filing a counter-bond be or become insufficient, and the party furnishing
the same fail to file an additional counter-bond, the
The court shall, after due notice and hearing, order attaching party may apply for a new order of
the discharge of the attachment subject to the attachment.
condition that:
The subsequent lifting of the writ upon the filing of
1. The movant makes a cash deposit, or files a a counter-bond by the defendant did not ipso facto
counter-bond executed to the attaching make the writ unlawful.
party with the clerk of the court where the
application is made, in an amount equal to Only the defendant, or the party whose property has
that fixed by the court in the order of been attached, and no a stranger, may apply for the
attachment, exclusive of costs. discharge of an attachment.
2. If the attachment is sought to be discharged
with respect to a particular property, the Discharge by other gourds
counter-bond shall be equal to the value of
that property as determined by the court. What is the remedy of the party against whom
3. In either case, the cash deposit or the attachment is issued?
counter-bond shall secure the payment of
any judgment that the attaching party may The party whose property has been ordered attached
recover in the action. A notice of the deposit may:
shall forthwith be served on the attaching
File a motion with the court in which he action is
party.
pending, before or after levy or even after the
release of the attached property, for an order to set
aside or discharge the attachment
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

What are the grounds for setting aside of the writ of the court, or so much as shall be necessary
attachment- to satisfy the judgment;
2. if any balance remains due, by selling so
a. That the same was improperly or irregularly much of the property, real or personal, as
issued or enforced may be necessary to satisfy the balance, if Pg.
b. The bond is insufficient. enough for that purpose remain in the 90
c. If the attachment is excessive, the discharge sheriff's hands, or in those the clerk of the
shall be limited to the excess. court;
3. By collecting from all persons having in their
The burden of proof lies with the creditor if the possession credits belonging to the
motion to quash is filed. judgment obligor, or owing debts to the
latter at the time of the attachment of such
Remedy of the attaching party- credits or debts, the amount of such credits
and debts as determined by the court in the
If the motion be made on affidavits on the part of the
action, and stated in the judgment, and
movant but not otherwise, the attaching party may
paying the proceeds of such collection over
oppose the motion by counter-affidavits or other
to the judgment obligee.
evidence in addition to that on which the attachment
was made.
The sheriff must make a return-
Courses of action of the court-
The sheriff shall forthwith make a return in writing to
After due notice and hearing, the court shall order the court of his proceedings under this section and
furnish the parties with copies thereof
the setting aside or the corresponding discharge of
the attachment if it appears that it was improperly or
irregularly issued or enforced, or that the bond is
insufficient, or that the attachment is excessive, and 3.18.4. Preliminary injunction (Rule 58)
the defect is not cured forthwith.
Preliminary injunction order granted at any stage
Family home is exempt from execution and also of an action or proceeding prior to the judgment or
exempt from attachment and forced sale, Art. 155 of final order, requiring a party or a court, agency or a
Family Code. person to refrain from a particular act or acts. It may
also require the performance of particular acts, which
g) Satisfaction of judgment out of property attached is known as preliminary mandatory injunction.

How can the judgment be satisfied by the attached Injunction is a judicial writ, process or proceeding
property? whereby a party is directed to either to do a particular
act, in which case it is called a mandatory injunction
If judgment be recovered by the attaching party and or to refrain from doing an act, in which case is called
execution issue thereon, the sheriff may cause the prohibitory injunction.
judgment to be satisfied out of the property attached,
if it be sufficient for that purpose in the following Purpose of injunction / definition of status quo
manner:
The primary purpose of the injunction is to preserve
1. By paying to the judgment obligee the the status quo by restraining action or interference or
proceeds of all sales of perishable or other furnishing preventive relief.
property sold in pursuance of the order of
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

The status quo is the last actual peaceable,


uncontested status which precedes the pending The court in May be Bond is not
controversy. which the granted ex required
application for parte if it shall
a) Definitions and differences: preliminary preliminary appear from
Pg.
injunction and temporary restraining order; status injunction was facts shown by 91
quo ante order made may affidavits or by
issue a TRO ex the verified
parte for a application
Preliminary Temporary Status Quo period not that great or
injunction restraining Order exceeding 20 irreparable
order days from injury would
service to the result to the
An order Issued to Nature of party sought applicant
granted at any preserve the cease and to be enjoined. before the
stage of an status quo636 desist order; matter can be
action or until the heard on
proceeding hearing of the notice.
prior to the application for
judgment or preliminary b) Requisites
final order, injunction.
requiring a Requisites for injunction:
party or a
court, agency 1. There must be a verified petition
or a person to 2. The application must establish that he has a
either refrain right of relief
from or to 3. The applicant must establish that there is a
perform a need to restrain the commission or
particular act continuance of the acts complained
or acts during 4. A bond must be posted, unless exempted
the pendency 5. The threatened injury must be incapable of
of the action. pecuniary estimation

Remains until Has a lifetime No specified c) Kinds of injunction


it is dissolved only of 20 days duration (lasts
Kinds of injunction
or 60 days. until revoked)
Cannot be
Preliminary injunction an order granted at any
granted An order to
stage of an action or proceeding prior to the
without notice maintain the
and hearing. status quo judgment or final order.
between and
Prohibitory injunction which commands a party to
among the
refrain from doing a particular act
parties until
the
Mandatory injunction which commands the
determination
performance of some positive act to correct a wrong
of the prayer
in the past.
for a writ of
preliminary
Preliminary prohibitory injunction an order
injunction
granted at any stage of an action or proceeding prior
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

to the judgment or final order, requiring a party, or of the applicant respecting the subject of
court, agency or a person to refrain from doing the action or proceeding, and tending to
particular act or acts. render the judgment ineffectual.

Preliminary mandatory injunction an order granted


Pg.
at any stage of the action or proceeding prior to the For injunction to issue, there must be: 92
judgment or final order requiring the performance of
particular act or acts. 1. There must be a right to be protected
2. The acts against which the injunction is to be
Final/Permanent injunction one issued in the directed are violative of such right.
judgment in the case permanently restraining the
defendant or making the preliminary
As an adjunct to the main action subject to the latters
Writ of injunction is not a judgment on merits: outcome, on the other hand, a writ of preliminary
Hearing on the application is therefore required. injunction may be issued upon the concurrence of the
following essential requisites:
The nature of action for injunction is in personam,
until the final determination of the case. Munoz vs 1. That the invasion of the right is material and
Yabut, June 6 2011 substantial
2. That the right of complainant is clear and
d) When writ may be issued unmistakable
3. That there is an urgent and paramount
For injunction to issue, there must be:
necessity for the writ to prevent serious
1. There must be a right to be protected damage.
2. The acts against which the injunction is to be
directed are violative of such right.
Clear legal right meaning: Must be present

It contemplates a right clearly founded in or granted


e) Grounds for issuance of preliminary injunction
by law. In the absence, of a clear legal right, the
Grounds for injunction: issuance of the writ constitutes grave abuse of
discretion.
1. That the applicant is entitled to the relief
demanded, and the whole or part of such The injunctive writ is conditioned on the existence of
relief consists in restraining the commission a clear and positive right of the applicant of the
or continuance of the act or acts complained applicant which should be protected, the writ being
of, or in requiring the performance of an act the strong arm of equity, an extraordinary
or acts either for a limited period or peremptory remedy which can be availed of only
perpetually; upon the existence of well-defined circumstances.
2. That the commission, continuance or non-
performance of the act or acts complained of Doctrine of the Strong Arm of the Equity in
during the litigation would probably work junction.
injustice to the applicant; or
The court has consistently ruled that there is no
3. That a party, court, agency or a person is
power the exercise of which is more delicate and
doing, threatening, or is attempting to do, or
which calls for greater circumspection than the
is procuring or suffering to be done some
issuance of an injunction. It should only be extended
act or acts probably in violation of the rights
in cases of great injury where courts of law cannot
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

afford an adequate or commensurate remedy in propriety of granting an injunction can be


damages; in cases of extreme urgency; where the determined, thus doing no further in its operation
right is very clear; where considerations of relative than to preserve the status quo until that
inconvenience bear strongly in complainants favor; determination.
where there is a willful and unlawful invasion of Pg.
plaintiffs right against his protest and remonstrance, The urgent nature of an injunction or TRO case 93
the injury being a continuing one, and where the demands a prompt action and immediate attention,
effect of mandatory injunction is rather to re- thereby compelling the filing of the case in the proper
establish and maintain a pre-existing continuing court without delay.
relation between the parties, recently and arbitrarily
Purpose of a TRO or injunction
interrupted by the defendant, than to establish a new
relation. Thunder Security and Investigation Agency The purpose of a TRO is to prevent a threatened
vs National Food Authority. wrong and to protect the property or rights involved
from further injury, until the issues can be
f) Grounds for objection to, or for the dissolution of determined after hearing on the merits.
injunction or restraining order
When can a temporary restraining order be issued-
a) The application for injunction or restraining
order may be denied, upon a showing of its If it shall appear from facts shown by affidavits or by
insufficiency. the verified application that great or irreparable
b) The injunction or restraining order may also injury would result to the applicant before the matter
be denied, or, if granted, may be dissolved, can be heard on notice, the court to which the
on other grounds upon affidavits of the party application for preliminary injunction was made, may
or person enjoined, which may be opposed
issue a temporary restraining order to be effective
by the applicant also by affidavits.
only for a period of twenty (20) days from service on
c) It may further be denied, or if granted, may
the party or person sought to be enjoined, except as
be dissolved, if it appears after hearing that
although the applicant is entitled to the herein provided.
injunction or restraining order, the issuance
What are the actions of the court within the 20 day
or continuance thereof, as the case may be,
period-
would cause irreparable damage to the party
or person enjoined while the applicant can
1. Order said party or person to show cause, at
be fully compensated for such damages as
a specified time and place, why the
he may suffer, and the former files a bond in
injunction should not be granted,
an amount fixed by the court conditioned
that he will pay all damages which the 2. The court shall also determine within the
applicant may suffer by the denial or the same period whether or not the preliminary
dissolution of the injunction or restraining injunction shall be granted, and
order. 3. Accordingly issue the corresponding order.

If it appears that the extent of the preliminary The test in the issuance of a TRO or injunction-
injunction or restraining order granted is too great, it
may be modified The injunction may be issued only when the plaintiff
appears to be entitled to the main relief he asks in his
g) Duration of a Temporary Restraining Order (TRO) complaint. This mean that the plaintiffs allegations
TRO an interlocutory order or writ issued by the should show clearly that he has cause of action.
court as a restraint on the defendant until the
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

The power to stay proceedings: Discretionary upon the application for preliminary injunction can be
the court- heard. In no case shall the total period of effectivity
of the temporary restraining order exceed twenty
The power to stay proceedings is incidental to the (20) days, including the original seventy-two hours
power inherent in every court to control the provided herein. Pg.
disposition of the cases on its dockets, considering its 94
time and effort, that of counsel and the litigants. What is the effect of the denial or non-resolution
within 20-day period?
Grant of injunctive writ: Discretionary.
In the event that the application for preliminary
The grant or denial of a writ of preliminary injunction injunction is denied or not resolved within the said
in a pending case rests on the sound discretion of the period, the temporary restraining order is deemed
court taking cognizance of the case, since the automatically waived.
assessment and evaluation of the evidence toward
the end involves findings of fact left to the said court Can the restraining order be extended? Prohibition.
for its conclusive determination.
The effectively of a temporary restraining order is not
Can the court issue a temporary restraining order ex extendible without the need of any judicial
parte- declaration to that effect, and no court shall have the
authority to extend or renew the same on the ground
However, and subject to the provisions of the for which it was issued.
preceding sections, , the executive judge of a
multiple-sala court or the presiding judge of a single What is the lifetime of the TRO issued by the Court
sala court may issue ex parte a temporary restraining of Appeals?
order based on the following grounds:
If the temporary restraining order is issued by the
1. If the matter is of extreme urgency and Court of Appeals or member thereof, it shall be
2. The applicant will suffer grave injustice and effective for 60 days from the service on the party or
irreparable injury person sought to be enjoined.

What is the lifetime of the TRO issued by the


What is the period of effectively of temporary Supreme Court?
restraining order issued ex parte? Service of
summons and documents. A restraining order issued by the Supreme Court or a
member thereof shall be effective until further
The temporary restraining order effective for only orders.
seventy-two (72) hours from issuance but he shall
immediately comply with the provisions of the next Period to resolve the main case or the petition
preceding section as to service of summons and the
The trial court, the Court of Appeals, the
documents to be served therewith.
Sandiganbayan or the Court of Tax Appeals that
Can the period of the 72-hour effectively be issued a writ of preliminary injunction against a lower
extended? Total period. court, board, officer or quasi-judicial agency shall
decide the main case or petition within the six
Yes. Within the aforesaid seventy-two (72) hours, the months from the issuance thereof.
judge before whom the case is pending shall conduct
a summary hearing to determine whether the General rule is that injunction is not available for
temporary restraining order shall be extended until acts already done, exception.
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

As a rule, the writ of prohibition will not lie to enjoin any national government
acts already done. However, as an exception to the project;
rule on mootness, courts will decide a question
otherwise moot if it is capable or repetition yet (b) Bidding or awarding of
evading review. contract/ project of the
Pg.
national government as
95
General Rule Injunction cannot restrain the defined under Section 2
execution of judgment; exceptions- hereof;

The general rule is that after a judgment has granted (c) Commencement
finality, it becomes the ministerial duty of the court prosecution, execution,
to order its execution. No court should interfere, by implementation, operation of
any such contract or project;
injunction or otherwise, to restrain such execution.

Exceptions: (d) Termination or rescission


of any such contract/project;
1. When the facts and circumstances later and
transpire that would render the execution
(e) The undertaking or
inequitable or unjust,
authorization of any other
2. When there is a change in situation of the
lawful activity necessary for
parties that may warrant injunctive relief.
such contract/project.

This prohibition shall apply in all cases,


The issuance of the writ should not in effect be a pre-
disputes or controversies instituted by
judgment of the case. Rivas vs SEC, 1990 a private party, including but not
limited to cases filed by bidders or
h) In relation to R.A. No. 8975, ban on issuance of those claiming to have rights through
TRO or writ of injunction in cases involving such bidders involving such
government infrastructure projects contract/project. This prohibition shall
not apply when the matter is of
Sec. 3, of R.A. No. 8975 provides: extreme urgency involving a
constitutional issue, such that unless a
Section 3.Prohibition on the Issuance of
temporary restraining order is issued,
Temporary Restraining Orders,
grave injustice and irreparable injury
Preliminary Mandatory Injunctions.
will arise. The applicant shall file a
No court, except the Supreme Court,
bond, in an amount to be fixed by the
shall issue any temporary restraining
court, which bond shall accrue in favor
order, preliminary injunction or
of the government if the court should
preliminary mandatory injunction
finally decide that the applicant was
against the government, or any of its
not entitled to the relief sought.
subdivisions, officials or any person or
entity, whether public or private acting i) Rule on prior or contemporaneous service of
under the government direction, to summons in relation to attachment
restrain, prohibit or compel the
following acts: Rule: In any event, the notice of application shall be
preceded, or contemporaneously accompanied, by
(a) Acquisition, clearance and service of summons, together with a copy of the
development of the right-of- complaint or initiatory pleading and the applicant's
way and/or site or location of
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

affidavit and bond, upon the adverse party in the 4. When appointment of receiver is the most
Philippines. convenient and feasible means of
preserving, administering, or disposing of
When the contemporaneous service of summons is
the property in litigation.
not required?
Pg.
1. Where the summons could not be served b) Requisites 96
personally or by substituted service despite
1. Verified application filed by the party
diligent efforts
applying for the appointment of
2. The adverse party is a resident of the
receivership;
Philippines temporary absent therefrom
2. Affidavit which shows the applicants
3. He is a non-resident thereof.
interest and grounds to which it is based;
3. Notice and hearing;
4. Applicant should post a bond in which the
3.18.5. Receivership (Rule 59)
amount shall be fixed by the court;
Receivership ancillary to the main action, directed 5. When the receiver is appointed, he shall also
to the property which is the subject of the original file a bond; AND
action to protect and preserve the rights of the 6. Receiver must be sworn to perform his
parties during the pendency of the main action, duties faithfully.
during the pendency of appeal, or as an aid in the
execution of judgment when the writ of execution has
been returned unsatisfied. c) Requirements before issuance of an order

a) Cases when receiver may be appointed Before issuing the order appointing a receiver the
court shall require the applicant to file a bond
Grounds for appointment of a receiver: executed to the party against whom the application is
presented, in an amount to be fixed by the court, to
1. The party applying for the appointment of a
the effect that the applicant will pay such party all
receiver has an interest in the property or damages he may sustain by reason of the
fund which is the subject of the action or appointment of such receiver in case the applicant
proceeding and such party or fund is in shall have procured such appointment without
danger of being lost, removed or materially sufficient cause; and the court may, in its discretion,
injured; at any time after the appointment, require an
2. In an action for the foreclosure of a additional bond as further security for such damages.
mortgage that the property is in danger of
being wasted, dissipated, or materially d) General powers of a receiver
injured and that its value is probably
The powers of a receiver are the following:
insufficient to discharge the debt or that the
parties have so stipulated in the contract of 1. To bring and defend actions in his own
mortgage; name, in his capacity as receiver;
3. After judgment, to preserve the property 2. To take and keep possession of the property
during the pendency of appeal, or dispose of subject of the controversy;
it according to the judgment, or to aid 3. To receive rents;
execution when execution has been 4. To collect dues to himself or to the fund or
returned unsatisfied or the judgment- property of which he is the receiver;
obligor refuses to apply his property in 5. To compound for and to compromise the
satisfaction of the judgment; OR same;
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

6. To make transfers; b) As a provisional remedy, it seeks to recover


7. To pay outstanding debts; and possession of the property prior to the
8. Generally, to do such acts representing the determination of the principal action.
property as the court may authorize.
Pg.
Procedure for Application for Replevin 97
e) Two kinds of bonds
1. File an application for a writ of replevin at
1. Applicants Bond (for appointment of the commencement off the action or before
receiver) To pay the damages the adverse the defendant answers;
party may sustain by reason of appointment 2. Attached to the application is an affidavit
of receiver; and
which contains the following:
2. Receivers Bond (of the appointed receiver, a. That the applicant is the owner or is
aside from oath) To answer for receivers entitled to the possession of a
faithful discharge of his duties. property particularly described,
b. Must state that the property was
f) Termination of receivership wrongfully detained by the adverse
party and alleging the cause of
Grounds: detention,
1. If necessity of a receiver no longer exist; c. That the property has not been
2. Aster notice and hearing; distrained or taken for tax
3. Receiver should settle the accounts; assessment, fine pursuant to law,
4. Direct the delivery of the funds or other seized under writ of execution or
property on his possession to the person preliminary attachment, or placed
entitled to receive them; under custodial egis, or if so, such is
exempt from seizure and custody,
How the termination is made: and
d. The actual market value of the
Motu propio or upon motion of either party. property.
3. Applicant must give a bond, executed to the
Court should order the discharge of the receiver from adverse party, double the value of the
further duty as such. property.

Receiver shall be entitled to reasonable


compensation to be taxed against the defeated party. Sheriffs duty in the implementation of the writ;
when property is claimed by third party

Order of the court and duty of the sheriff:


3.18.6. Replevin (Rule 60)
1. Approval of application;
Replevin is a remedy, the purpose of which is to 2. Issue writ of replevin ordering the sheriff to
recover personal property. It may be a main action or take the property into his custody (Sec. 3);
provisional remedy. 3. Sheriff should serve a copy of the order to
the adverse party, together with the copy of
a) As a main action, its ultimate goal is to recover
the application, affidavit, and bond, and take
the personal property capable of manual delivery
custody of the property (Sec. 4); and
wrongfully detained by a person.
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

4. If after five (5) days and the adverse party 3.19. SPECIAL CIVIL ACTION
does not object, the property shall be
delivered to the applicant. 3.19.1. Nature of special civil actions

Special civil actions are basically ordinary civil


Pg.
proceedings; what makes them special are the
If property is claimed by third party 98
distinct peculiarities inherent in their very nature not
found in ordinary civil actions.
If the property taken is claimed by any person other
than the party against whom the writ of replevin had
They are actions in themselves, but possessing special
been issued or his agent, and such person makes an
affidavit of his title thereto, or right to the possession matters that required special procedures.
thereof, stating the grounds therefor, and serves such
affidavit upon the sheriff while the latter has For this reason, these proceedings are classified as
possession of the property and a copy thereof upon special civil actions.
the applicant, the sheriff shall not be bound to keep
the property under replevin or deliver it to the 3.19.2. Ordinary civil actions versus special civil
applicant unless the applicant or his agent, on actions
demand of said sheriff, shall file a bond approved by
the court to indemnify the third-party claimant in a
Ordinary civil action Special Civil Action
sum not less than the value of the property under
replevin as provided in section 2 hereof. In case of
disagreement as to such value, the court shall
Based on a cause of Not all is based on
determine the same.
action, act or omission cause of action like
by which one violates declaratory relief and
No claim for damages for the taking or keeping, of the
property may be enforced against the bond unless the right of another interpleader
the action therefor is filed within one hundred twenty
(120) days from the date of the filing of the bond. May be filed in RTC or Some are filed only in
MTC depending on MTC like Forcible Entry
The sheriff shall not be liable for damages, for the value and Unlawful Detainer
taking or keeping of such property, to any such third-
party claimant if such bond shall be filed. Nothing Venue is determined by Not necessarily the case
herein contained shall prevent such claimant or any the residence of the
third person from vindicating his claim to the parties or the location
property, or prevent the applicant from claiming of property
damages against a third-party claimant who filed a
frivolous or plainly spurious claim, in the same or a Ordinarily initiated by Petitions and
separate action. Sec. 7, Rule 60. complaints complaint,

Initiated by filing of Petitions:

1. Declaratory relief other than similar


remedies
2. Review of adjudication of COMELEC and COA
3. Petitions for Certiorari, prohibition and
mandamus
4. Quo warranto
5. Contempt
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

Initiated by filing of a complaint: parties to the property subject of


pending suit the action
1. Interpleader c. Defendants are
2. Expropriation being sued
3. Foreclosure of real estate mortgage precisely to Pg.
4. Partition
implead them 99
5. Forcible entry and unlawful detainer

3.19.3. Jurisdiction and venue

The subject matter of a petition for declaratory relief a) Procedure and requisites for interpleader; when
raises issues which are not capable of pecuniary to file
estimation and must be filed with the Regional Trial
Court. It would be error to file the petition with the Whenever conflicting claims upon the same subject
matter are or may be made against a person who
Supreme Court which has no original jurisdiction to claims:
entertain a petition for declaratory relief.
1. No interest whatever in the subject matter,
3.19.4. Interpleader (Rule 62) or
2. An interest which in whole or in part is not
Interpleader It is a special civil action filed by a disputed by the claimants
person, who has property in his possession or an
obligation to render, wholly or partially, against He may bring an action against the
whom two conflicting claims are made upon the same conflicting claimants to compel them to
subject matter and over which he claims no interest, interplead and litigate their several claims
or have an interest which in whole or in part is not among themselves.
disputed by the claimants, to compel the claimants to
interplead and to litigate their conflicting claims The sheriff who is in possession of the proceeds of the
among themselves. sale of property on execution may file action for
interpleader.
Complaint in
Interpleader Lessee may file an action for interpleader if he is in
Intervention
doubt as to whom he shall pay the rent.
a. Original Action a. Ancillary Action
b. Presupposes that b. Is proper in any of
Action for interpleader must be filed within the
the plaintiff has no the four situations
reasonable time after the dispute has arisen,
interest in the mentioned in Rule
otherwise it may be barred by laches. Wack-Wack
subject matter of 19, wherein third
Golf and Country Club vs Lee Wo, March 26, 1976
the action or has an person has legal
interest therein interest over the Interpleader cannot be availed of to resolve the issue
which, in whole or subject matter of of breach of undertakings made by defendants, which
in part, is not action or in the issues should be resolved in ordinary action for
disputed by the success of either or specific performance. Beltran vs PHHC, Aug 28, 1969
other parties to the both defendant, or
action will greatly When to file motion to dismiss
c. Defendants are affected in the
already original disposition of the Within the time for filing an answer.
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

Grounds: Who may file petition.

1. Impropriety of the interpleader action or 1. Any person interested under a deed, will,
2. On other appropriate grounds specified in contract or other written instrument, or
Rule 16. 2. Whose rights are affected by a statute,
Pg.
executive order or regulation, ordinance, or 100
The period to file the answer shall be tolled any other governmental regulation

If the motion is denied,

The movant may file his answer within the


remaining period, but which shall not be less
than five (5) days in any event, reckoned
from notice of denial Before breach or violation thereof, they may:

Answer and other pleadings 1. Bring an action in the appropriate Regional


Trial Court
2. To determine any question of construction
Each claimant shall:
or validity arising, and for a declaration of his
1. File his answer setting forth his claim within rights or duties, thereunder. (Bar Matter No.
fifteen (15) days from service of the 803, 17 February 1998)
summons upon him,
2. Serving a copy thereof upon each of the
other conflicting claimants who may file Other actions can be brought under this rule
their reply thereto as provided by these
Rules. An action for the reformation of an instrument,

If any claimant fails to plead within the time herein 1. to quiet title to real property or
fixed, 2. remove clouds therefrom, or
3. to consolidate ownership under Article 1607
The court may, on motion, declare him in
of the Civil Code,
default and thereafter render judgment
barring him from any claim in respect to the
Who can be parties
subject matter.
The parties in an interpleader action may file: All persons who have or claim any interest which
1. counterclaims, would be affected by the declaration shall be made
2. cross-claims, parties
3. third-party complaints and
4. responsive pleadings thereto, as provided by (b) Requisites of action for declaratory relief
these Rules.
1. The subject matter must be a deed, will,
contract or other written instrument,
statute, executive order or regulation or
3.19.5. Declaratory reliefs and similar remedies ordinance;
(Rule 63) 2. The terms of said document or the validity
thereof are doubtful and require judicial
a) Who may file the action construction;
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

3. There must have been no breach of said 2. The parties shall be allowed to file such
document; pleadings as may be necessary or proper.
4. There must be actual justiciable controversy
or the ripening seeds of one (there is 3.19.6. Review of judgments and final orders or
threatened litigation the immediate future); resolution of the Comelec and COA (Rule 64)
5. There must be allegation of any threatened, Pg.
imminent and inevitable violation of 101
a) Application of Rule 65 under Rule 64
petitioners right sought to be prevented by
the declaratory relief sought; This Rule 64 shall govern the review of judgments and
6. The controversy is between persons whose
final orders or resolutions of the Commission on
interests are adverse;
Elections and the Commission on Audit.
7. The issue must be ripe for judicial
determination e.g. administrative remedies
Mode of review
already exhausted;
8. The party seeking the relief has legal interest
A judgment or final order or resolution of the
in the controversy; and
9. Adequate relief is not available thru other Commission on Elections and the Commission on
means. Audit may be brought by the aggrieved party to the
Supreme Court on certiorari under Rule 65
(c) When court may refuse to make judicial
declaration Period of filing

Except in actions falling under the second paragraph The petition shall be filed:
of section 1 of this Rule, the court,
1. Within thirty (30) days
1. motu proprio or 2. From notice of the judgment or final order
2. upon motion, or resolution sought to be reviewed.

The filing of a motion for new trial or


May refuse to exercise the power to declare reconsideration of said judgment or final order or
rights and to construe instruments: resolution, if allowed under the procedural rules of
the Commission concerned,

1. In any case where a decision would not Shall interrupt the period herein fixed.
terminate the uncertainty or controversy
which gave rise to the action, or
2. In any case where the declaration or If the motion is denied,
construction is not necessary and proper
under the circumstances. The aggrieved party may file the petition within the
remaining period, but which shall not be less than five
d) Conversion to ordinary action (5) days in any event, reckoned from notice of denial.

If before the final termination of the case, a breach or b) Distinction in the application of Rule 65 to
violation of an instrument or a statute, executive judgments of the Comelec and COA and the
order or regulation, ordinance, or any other application of Rule 65 to other tribunals, persons
governmental regulation should take place, and officers

1. The action may thereupon be converted into Rule 64 Rule 65


an ordinary action, and
Review of the Review of the decision,
judgement, final orders or resolutions of
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

orders, or the court or tribunal ordinary course appeal or any other is entitled,
resolutions of the exercising judicial and of law, a person other plain, and there is no
COMELEC and COA quasi-judicial functions aggrieved speedy, and other plain,
Filed within 30 days Filed within 60 days thereby may file adequate speedy and
from notice of from notice of a verified remedy in the adequate
judgement or final judgement, orders or Pg.
petition in the ordinary course remedy in the
order Sought to be resolution or notice of 102
proper court, of law, a person ordinary course
reviewed the denial of the Motion alleging the facts aggrieved of law, the
for Reconsideration or with certainty thereby may file person
trial and praying that a verified aggrieved
Filed with SC Filed with RTC, SB, CA or judgment be petition in the thereby may file
SC, subject to hierarchy rendered proper court, a verified
of courts annulling or alleging the facts petition in the
Filing of MR can be Filing of MR is a modifying the with certainty proper court,
made if allowed by condition sine qua non proceedings of and praying that alleging the facts
the rules of the for the filing of the such tribunal, judgment be with certainty
Commission petition, unless it falls board or officer, rendered and praying that
under the exceptions and granting commanding judgment be
such incidental the respondent rendered
reliefs as law to desist from commanding
and justice may further the respondent,
3.19.7. Certiorari, prohibition and mandamus require. proceedings in immediately or
(Rule 65) the action or at some other
matter specified time to be
a) Definitions and distinctions therein, or specified by the
otherwise court, to do the
Certiorari Prohibition Mandamus granting such act required to
incidental reliefs be done to
as law and protect the
When any When the When any justice may rights of the
tribunal, board proceedings of tribunal, require. petitioner, and
or officer any tribunal, corporation, to pay the
exercising corporation, board, officer or damages
judicial or quasi- board, officer or person sustained by the
judicial person, whether unlawfully petitioner by
functions has exercising neglects the reason of the
acted without or judicial, quasi- performance of wrongful acts of
in excess its or judicial or an act which the the respondent.
his jurisdiction, ministerial law specifically
or with grave functions, are enjoins as a duty
abuse of without or in resulting from
discretion excess of its or an office, trust, i. Certiorari distinguished from appeal by certiorari
amounting to his jurisdiction, or station, or
lack or excess of or with grave unlawfully
jurisdiction, and abuse of excludes Rule 45 Appeal by
Rule 65 Petition for
there is no discretion another from Certiorari / Petition for
Certiorari
appeal, or any amounting to the use and Review on Certiorari
plain, speedy, lack or excess of enjoyment of a
and adequate jurisdiction, and right or office to a) Petition is based on a. The petition raises
remedy in the there is no which such questions of law the issue whether or
which the appellant not the lower court
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

desires the court to acted without or in The remedies of appeal and certiorari are mutually
resolve excess of jurisdiction exclusive
b) It is a mode of appeal or gave abuse of
involving the review jurisdiction
of judgment, award b. Directed against the
The remedies of appeal and certiorari are mutually
or final order on the interlocutory order of exclusive and not alternative or successive. The
Pg.
merits the court prior to antithetic character of appeal and certiorari has been
103
c) It is a mode of appeal appeal form generally recognized and observed save only on those
which centers on the judgment or where rare instances when appeal is satisfactorily shown to
review on the merits there is no appeal or
be an inadequate remedy. Thus, a petitioner must
of final order of the any other plain,
lower court involving speedy and adequate show valid reasons why the issues raised in his
pure questions of law remedy petition for certiorari could not have been raised on
d) Must be made within c. Is an original action appeal
the reglementary that dwells on the
period for appeal or jurisdictional errors ii. Prohibition and mandamus distinguished from
within 15 days from of whether the lower
injunction
the receipt of the court acted without
assailed judgment or in excess of its
e) Stays the judgment, jurisdiction or with
Prohibition Mandamus Injunction
award, or order grave abuse of
appealed from jurisdiction
f) Petition and d. May be filed not later
respondent are the than 60 days from the Always main Always main Maybe a main
original parties to the notice of judgment, action, to action, to action or
action, and the lower order or resolution prevent act of compel the act provisional
court or quasi-judicial sought to be assailed
respondent desired remedy
agency is not e. Unless a writ of
impleaded preliminary
g) Prior filing of motion injunction or Directed Directed Directed
for reconsideration is temporary against a against judicial against a party
not required restraining order court, a or non-judicial
h) The appellate court is shall have been tribunal body, Does not
in the exercise of its issued, does not stay involve
exercising exercising
appellate jurisdiction the challenged
judicial or ministerial jurisdiction as
and the power of proceeding
review f. The parties are the quasi-judicial duty ground.
aggrieved party functions
against the lower
court or quasi-judicial Ground is lack
agency and the
or excess of
prevailing parties
g. Motion for jurisdiction
reconsideration is
required as a general
rule.
h. The higher court b) Injunctive relief
exercises original
jurisdiction under its The court in which the petition is filed may issue
power of control and orders expediting the proceedings, and it may also
supervision over the grant a temporary restraining order or a writ of
proceedings of the preliminary injunction for the preservation of the
lower court
rights of the parties pending such proceedings. The
petition shall not interrupt the course of the principal
case unless a temporary restraining order or a writ of
preliminary injunction has been issued against the
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

public respondent from further proceeding in the The court, in its judgment may also award damages
case. and the execution of the award for damages or costs
shall follow the procedure in Sec. 1, Rule 39
The public respondent shall proceed with the
principal case within ten (10) days from the filing of a e) Actions/omissions of MTC/RTC in election cases
petition for certiorari with a higher court or tribunal, Pg.
absent a Temporary Restraining Order (TRO) or a Writ 104
Under Rule 65, the proper party who can file a
of Preliminary Injunction, or upon its expiration. petition for certiorari, prohibition or mandamus is the
Failure of the public respondent to proceed with the
person aggrieved by the action of a trial court or
principal case may be a ground for an administrative
tribunal in a criminal case pending before it.
charge (AM 07-7- 12-SC, Dec. 12, 2007).
Ordinarily, the petition is filed in the name of the
People of the
c) Exceptions to filing of motion for reconsideration
before filing petition
Philippines by the Solicitor General. However, there
are cases when such petition may be filed by other
1. When the issue is one purely of law;
parties who have been aggrieved by the order or
2. When there is urgency to decide upon the
ruling of the trial courts.
question and any further delay would
prejudice the interests of the government or
In the prosecution of election cases, the aggrieved
of the petitioner;
party is the Comelec, who may file the petition in its
3. Where the subject matter of the action is
name through its legal officer or through the Solicitor
perishable;
General if he agrees with the action of the Comelec.
4. When order is a patent nullity;
5. When questions have been duly raised and
f) When and where to file petition
passed upon by the lower court;
6. When is urgent necessity for the resolution
The petition shall be filed not later than sixty (60) days
of the question;
from notice of the judgment, order or resolution. In
7. When Motion for Reconsideration would be case a motion for reconsideration or new trial is
useless; timely filed, whether such motion is required or not,
8. In a criminal case, where relief from order of the sixty (60) day period shall be counted from notice
arrest is urgent and the granting of such of the denial of said motion.
relief by the trial court is improbable;
9. Where the proceeding was ex parte or in The petition shall be filed in the Supreme Court or, if
which the petitioner had no opportunity to it relates to the acts or omissions of a lower court or
object; of a corporation, board, officer or person, in the
10. When petitioner is deprived of due process Regional Trial Court exercising jurisdiction over the
and there is extreme urgency for urgent territorial area as defined by the Supreme Court. It
relief; and may also be filed in the Court of Appeals whether or
11. When issue raised is one purely of law or not the same is in aid of its appellate jurisdiction, or
public interest is involved. in the Sandiganbayan if it is in aid of its appellate
jurisdiction. If it involves the acts or omissions of a
d) Reliefs petitioner is entitled to quasi-judicial agency, unless otherwise provided by
law or these Rules, the petition shall be filed in and
The primary relief will be annulment or modification cognizable only by the Court of Appeals.
of the judgment, order or resolution or proceeding
subject of the petition. It may also include such other No extension of time to file the petition shall be
incidental reliefs as law and justice may require granted except for compelling reason and in no case
exceeding fifteen.
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

g) Effects of filing of an unmeritorious petition the office or position


arose;
The court, however, may dismiss the petition if it finds
the same to be patently without merit, prosecuted
manifestly for delay, or that the questions raised
Pg.
therein are too unsubstantial to require Petitioner is entitled to Petition may be a voter
105
consideration. Sec. 8, Rule 65. a office not entitled not the
office

Commencement of Quo Warranto


3.19.8. Quo warranto (Rule 66)
An action for the usurpation of a
Quo warranto is a demand made by the state upon
some individual or corporation to show by what right
they exercise some franchise or privilege 1. public office,
appertaining to the state which, according to the 2. position or
Constitution and laws they cannot legally exercise by 3. franchise
virtue of a grant and authority from the State.
May be commenced by a verified petition
a) Distinguish from quo warranto in the Omnibus brought in the name of the Republic of the
Philippines against:
Election Code
a. A person who usurps, intrudes into,
Quo Warranto Rule 66 Quo Warranto, or unlawfully holds or exercises a
Election Code public office, position or franchise;
b. A public officer who does or suffers
The subject position is Subject position is an act which, by the provision of
appointive office elective office law, constitutes a ground for the
forfeiture of his office; or
Grounds relied upon
The issue is the legality are:
An association which acts as a corporation within the
of the occupancy of the
(a) ineligibility to the Philippines without being legally incorporated or
office by virtue of a
position; or (b) without lawful authority so to act.
legal appointment
disloyalty to the
Republic b) When government may commence an action
against individuals
Petition is brought May be instituted with
either to the Supreme the COMELEC by any When the Solicitor General or Public prosecutor must
Court, the Court of voter contesting the commence the action,
Appeals or the Regional election of any member
Trial Court; of Congress, regional, 1. directed by the President of the Philippines,
provincial or city or
officer; or to the MeTC, 2. when upon complaint or
MTC or MCTC if against 3. otherwise he has good reason to believe that
any case specified in the preceding section
any barangay official;
can be established by proof
Filed within one (1) year Filed within ten (10)
from the time the cause days after the
of ouster, or the right of proclamation of the
the petitioner to hold results of the election;
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

c) When individual may commence an action disobeyed a lawful order


of the court.
A person claiming to be entitled to a public office or
position usurped or unlawfully held or exercised by The person adjudged entitled to the office may also
another bring action against the respondent to recover the
Pg.
damages sustained by such person by reason of the
106
may bring an action therefor in his own usurpation.
name.
3.19.9. Expropriation (Rule 67)

d) Judgment in quo warranto action Expropriation - is an exercise of the States power of


eminent domain wherein the government takes a
When the respondent is found guilty of usurping into, private property for public purpose upon payment of
intruding into, or unlawfully holding or exercising a just compensation.
public office, position or franchise,
To be filed with the RTC; this is action incapable of
a) Judgment shall be rendered that such pecuniary estimation
respondent be ousted and altogether
excluded therefrom, and a) Matters to allege in complaint for expropriation
b) That the petitioner or relator, as the case
may be, recover his costs. The right of eminent domain shall be exercised by:

1. the filing of a verified complaint


Such further judgment may be rendered determining 2. which shall state with certainty the right and
the respective rights in and to the public office, purpose of expropriation,
position or franchise of all the parties to the action as 3. describe the real or personal property
justice requires sought to be expropriated, and
4. join as defendants all persons owning or
e) Rights of a person adjudged entitled to public claiming to own, or occupying, any part
office thereof or interest therein, showing, so far
as practicable, the separate interest of each
If judgment be rendered in favor of the person defendant.
averred in the complaint to be entitled to the public
office a. If the title to any property sought to be
expropriated appears to be in the Republic of the
Philippines, although occupied by private
He may, after taking the oath of office and executing
individuals, or
any official bond required by law,
b. if the title is otherwise obscure or doubtful so
that the plaintiff cannot with accuracy or
1. Take upon himself the execution of
certainty specify who are the real owners,
the office, and
2. May immediately thereafter
Averment to that effect shall be made in the
demand of the respondent all the
books and papers in the complaint.
respondent's custody or control
appertaining to the office to which b) Two stages in every action for expropriation
the judgment relates. a) Determination of the authority of the
3. If the respondent refuses or plaintiff to expropriate
neglects to deliver any book or
paper pursuant to such demand, b) Determination of just compensation through
a. He may be punished for the court-appointed commissioners.
contempt as having
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

e) Defenses and objections f) Order of expropriation

a. If the objections to and the defenses against the


If a defendant has no objection or defense to the
right of the plaintiff to expropriate the property
action or the taking of his property,
are overruled, or
b. When no party appears to defend as required by Pg.
he may file and serve a notice of appearance this Rule, 107
and a manifestation to that effect,
a. Specifically designating or the court may issue an order of
identifying the property in which expropriation declaring that the plaintiff has
he claims to be interested, within a lawful right to take the property sought to
the time stated in the summons. be expropriated, for the public use or
b. Thereafter, he shall be entitled to purpose described in the complaint,
notice of all proceedings affecting
the same.
upon the payment of just compensation to
be determined as of the date of the taking of
If a defendant has any objection to the filing of or the property or the filing of the complaint,
the allegations in the complaint, or any objection or whichever came first.
defense to the taking of his property,

He shall serve his answer within the time stated in the A final order sustaining the right to expropriate the
summons. property may be appealed by any party aggrieved
thereby.
The answer shall:
Such appeal, however, shall not prevent the court
a. Specifically designate or identify the
from determining the just compensation to be paid.
property in which he claims to have an
interest,
b. State the nature and extent of the After the rendition of such an order,
interest claimed, and
c. Adduce all his objections and defenses The plaintiff shall not be permitted to dismiss or
to the taking of his property. discontinue the proceeding except on such terms as
d. No counterclaim, cross-claim or third- the court deems just and equitable.
party complaint shall be alleged or
allowed in the answer or any g)-h) Ascertainment of just compensation;
subsequent pleading. Appointment of commissioners; commissioners
report; court action upon commissioners report
A defendant waives all defenses and objections not so
alleged Upon the rendition of the order of expropriation,

But the court, in the interest of justice, may permit a. The court shall appoint not more than three
amendments to the answer to be made not later (3) competent and disinterested persons as
than ten (10) days from the filing thereof. commissioners to ascertain and report to the
court the just compensation for the property
However, at the trial of the issue of just compensation sought to be taken.
whether or not a defendant has previously appeared b. The order of appointment shall designate
or answered, the time and place of the first session of the
hearing to be held by the commissioners and
He may present evidence as to the amount of the specify the time within which their report
compensation to be paid for his property, and he may shall be submitted to the court.
share in the distribution of the award.
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

Copies of the order shall be served on the parties. report or their statement of agreement therewith,
the court may, after hearing,
Objections to the appointment of any of the
commissioners shall be filed with the court within ten a. accept the report and render judgment in
(10) days from service, and shall be resolved within accordance therewith, or,
Pg.
thirty (30) days after all the commissioners shall b. for cause shown, it may recommit the same
108
have received copies of the objections to the commissioners for further report of
facts, or
Report by commissioners and judgment thereupon. c. it may set aside the report and appoint new
commissioners; or
The court may: d. it may accept the report in part and reject it
in part and it may make such order or
1. order the commissioners to report when any
e. render such judgment as shall secure to the
particular portion of the real estate shall
plaintiff the property essential to the
have been passed upon by them, and
exercise of his right of expropriation, and to
2. may render judgment upon such partial
the defendant just compensation for the
report, and
property so taken
3. direct the commissioners to proceed with
their work as to subsequent portions of the
property sought to be expropriated, and
4. may from time to time so deal with such i) Rights of plaintiff upon judgment and payment
property.
Upon payment by the plaintiff to the defendant of the
compensation fixed by the judgment, with legal
The commissioners shall: interest thereon from the taking of the possession of
the property, or after tender to him of the amount so
fixed and payment of the costs,
1. make a full and accurate report to the court
of all their proceedings, and
2. such proceedings shall not be effectual until the plaintiff shall have the right to enter
the court shall have accepted their report upon the property expropriated and to
and rendered judgment in accordance with appropriate it for the public use or purpose
their recommendations. defined in the judgment, or
to retain it should he have taken immediate
Except as otherwise expressly ordered by the court, possession thereof under the provisions of
such report shall be filed within sixty (60) days from section 2 hereof.
the date the commissioners were notified of their
appointment, which time may be extended in the If the defendant and his counsel absent themselves
discretion of the court. from the court, or decline to receive the amount
tendered,
Upon the filing of such report, the clerk of the court
shall serve copies thereof on all interested parties, The same shall be ordered to be deposited in court
with notice that they are allowed ten (10) days within and such deposit shall have the same effect as actual
which to file objections to the findings of the report, payment thereof to the defendant or the person
if they so desire. ultimately adjudged entitled thereto.

Action upon commissioners' report. j) Effect of recording of judgment

Upon the expiration of the period of ten (10) days The right of the plaintiff to enter upon the property of
referred to in the preceding section, or even before the defendant and appropriate the same for public
the expiration of such period but after all the use or purpose shall not be delayed by an appeal from
interested parties have filed their objections to the the judgment.
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

But if the appellate court determines that plaintiff more than one hundred twenty (120) days
has no right of expropriation, from the entry of judgment, and
4. that in default of such payment the
The judgment shall be rendered ordering the Regional property shall be sold at public auction to
Trial Court to forthwith enforce the restoration to the
satisfy the judgment. Pg.
defendant of the possession of the property, and to
109
determine the damages which the defendant
sustained and may recover by reason of the b) Sale of mortgaged property; effect
possession taken by the plaintiff.
When the defendant, after being directed to do so as
3.19.10. Foreclosure of real estate mortgage provided in the next preceding section, fails to pay the
(Rule 68) amount of the judgment within the period specified
therein, the court, upon motion:
In an action for the foreclosure of a mortgage or other
encumbrance upon real estate: a. Shall order the property to be sold in the
manner and under the provisions of Rule 39
1. the complaint shall set forth the date and and other regulations governing sales of real
due execution of the mortgage; estate under execution.
2. its assignments, if any; b. Such sale shall not affect the rights of
3. the names and residences of the mortgagor persons holding prior encumbrances upon
and the mortgagee; the property or a part thereof, and
4. a description of the mortgaged property; a c. When confirmed by an order of the court,
statement of the date of the note or other also upon motion, it shall operate to divest
documentary evidence of the obligation the rights in the property of all the parties to
secured by the mortgage, the action and to vest their rights in the
5. the amount claimed to be unpaid thereon; purchaser, subject to such rights of
and redemption as may be allowed by law.
6. the names and residences of all persons
having or claiming an interest in the Rules on Redemption
property subordinate in right to that of the
holder of the mortgage, all of whom shall be Upon the finality of the order of confirmation or
made defendants in the action upon the expiration of the period of redemption
when allowed by law,
a) Judgment on foreclosure for payment or sale
The purchaser at the auction sale or last
If upon the trial in such action the court shall find the redemptioner, if any, shall be entitled to the
facts set forth in the complaint to be true: possession of the property unless a third party is
actually holding the same adversely to the judgment
1. it shall ascertain the amount due to the obligor.
plaintiff upon the mortgage debt or The said purchaser or last redemptioner may secure
obligation a writ of possession, upon motion, from the court
2. including interest and other charges as which ordered the foreclosure.
approved by the court, and costs, and
3. shall render judgment for the sum so found c) Disposition of proceeds of sale
due and order that the same be paid to the
The amount realized from the foreclosure sale of the
court or to the judgment obligee within a mortgaged property shall, after deducting the costs of
period of not less than ninety (90) days nor
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

the sale: be paid to the person foreclosing the as the balance remaining becomes
mortgage due under the terms of the original
contract, which time shall be stated
When there is any balance or residue
in the judgment.
When there shall be any balance or residue, after Pg.
paying off the mortgage debt due, the same shall be 110
paid to junior encumbrancers in the order of their i. Instances when court cannot render deficiency
priority, to be ascertained by the court, or if there be judgment
no such encumbrancers or there be a balance or
residue after payment to them, then to the Where the debtor-mortgagor is a non-resident and
mortgagor or his duly authorized agent, or to the who at the time of the filing of the action for
person entitled to it foreclosure and during the pendency of the
proceedings was outside the Philippines, it is believed
If the debt for which the mortgage or encumbrance that a deficiency judgment would not be procedurally
was held is not all due as provided in the judgment as feasible.
soon as a sufficient portion of the property has been
sold to pay the total amount and the costs due: e) Judicial foreclosure versus extrajudicial
foreclosure
a) the sale shall terminate; and
b) afterwards as often as more becomes due Extrajudicial
Judicial foreclosure
for principal or interest and other valid foreclosure
charges, the court may, on motion, order No complaint is filed Complaint is filed in
more to be sold. courts
There is a right of No right of
But if the property cannot be sold in portions without redemption redemption except
prejudice to the parties, the whole shall be ordered to when the mortgagee
be sold in the first instance, and the entire debt and is a banking institution
costs shall be paid, if the proceeds of the sale be Has to file separate Can move for
sufficient therefor, there being a rebate of interest action to recover any deficiency in the same
where such rebate is proper deficiency action
The buyer in public Becomes the owner of
d) Deficiency judgment
auction becomes the the property after
absolute owner after confirmation of sale
If upon the sale of any real property as provided in the the consolidation
next preceding section there be a balance due to the There is a special No need for special
plaintiff after applying the proceeds of the sale: power of attorney power of attorney

the court, upon motion, shall render


judgment against the defendant for any
3.19.11. Partition (Rule 69)
such balance for which,
Partition separation, division and assignment of a
a. by the record of the case, he may thing held in common among those to whom it may
be personally liable to the plaintiff, belong.
b. upon which execution may issue
immediately if the balance is all Classes of partition:
due at the time of the rendition of
the judgment; a. Voluntary partition a division of the
c. otherwise; the plaintiff shall be property by the act of the parties
themselves.
entitled to execution at such time
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

b. Compulsory partition- partition by judicial b) Matters to allege in the complaint for partition
proceedings at the instance of one or more
of the co-tenants without regard to the The plaintiff shall state in his complaint, the nature
wishes of the other co-tenants. and extent of his title, an adequate description of the
real estate of which partition is demanded, and shall
join as defendants all other persons interested in the Pg.
111
Kinds of partition: property.

a. Total Partition is total when all the things He must also include a demand for the accounting of
are divided among the participants. the rents, profits and other income from the property
b. Partial when some of the things are which he may be entitled to. These cannot be
divided and the rest remaining the demanded in another action because they are parts
community ownership
of the cause of action for partition.
c. Provisional when it is temporary or
conditional, that is until a final or definite
division is made. They will be barred if not set up in the same action
d. Definite when the division resulting is pursuant to the rule against splitting a single cause of
permanent, final and absolute action.
e. Judicial when the court intervenes and
approves the division c) Three stages in every action for partition
f. Extrajudicial division may be made by the Three (3) stages in the action, each of which could be
testator himself, or by some person named the subject of appeal:
by the deceased or amicably the interested
heirs by common agreement. a) the order of partition where the property of
the partition is determined;
b) the judgment as to the accounting of the
It is in nature of action quasi-in rem since it is not only fruits and income of the property; and
directed to a particular person, but it constitutes a c) the judgment of partition.
lien on the property subject matter of the action with
the intention of excluding the interest of defendant d) Order of partition and partition by agreement
therein.
If after the trial the court finds that the plaintiff has
Partition is capable of pecuniary estimation, the right thereto, it shall order the partition of the real
therefore, the jurisdiction depends on the amount of estate among all the parties in interest.
the property. If it is real property, the venue depends
where the property is located, if it is personal Thereupon the parties may, if they are able to agree,
property, it depends on the residence of the parties.
a. make the partition among themselves by
a) Who may file complaint; who should be made proper instruments of conveyance, and
defendants b. the court shall confirm the partition so
agreed upon by all the parties, and
Person having the right to compel the partition of real c. such partition, together with the order of the
estate may do so as provided in this Rule, court confirming the same, shall be recorded
in the registry of deeds of the place in which
a. setting forth in his complaint the nature and the property is situated
extent of his title and
b. an adequate description of the real estate of
which partition is demanded and e) Partition by commissioners; appointment of
c. joining as defendants all other persons commissioners, commissioners report; court action
interested in the property. upon commissioners report
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

If the parties are unable to agree upon the partition, A certified copy of the judgment shall in either case
be recorded in the registry of deeds of the place in
a. the court shall appoint not more than three which the real estate is situated, and the expenses of
(3) competent and disinterested persons as such recording shall be taxed as part of the costs of
commissioners to make the partition, the action
Pg.
b. commanding them to set off to the plaintiff
g) Partition of personal property 112
and to each party in interest such part and
proportion of the property as the court shall
The provisions of this Rule shall apply to partitions of
direct
estates composed of personal property, or of both
f) Judgment and its effects real and personal property,

If actual partition of property is made, the judgment In so far as the same may be applicable.
shall
h) Prescription of action
a. state definitely, by metes and bounds and Prescription of action does not run in favor of a co-
adequate description, the particular portion owner or co-heir against his co-owner or co-heirs as
of the real estate assigned to each party, and long as there is a recognition of the co-ownership
b. the effect of the judgment shall be to vest in expressly or impliedly.
each party to the action in severalty the
portion of the real estate assigned to him. The action for partition cannot be barred by
prescription as long as the co-ownership exists.

If the whole property is assigned to one of the


parties upon his paying to the others the sum or But while the action to demand partition of a co-
sums ordered by the court, owned property does not prescribe, a co-owner may
acquire ownership thereof by prescription where
a. the judgment shall state the fact of such there exists a clear repudiation of the co-ownership
payment and of the assignment of the real and the co-owners are apprised of the claim of
estate to the party making the payment, and adverse and exclusive ownership.
b. the effect of the judgment shall be to vest in
the party making the payment the whole of 3.19.12. Forcible entry and unlawful detainer
the real estate free from any interest on the (Rule 70)
part of the other parties to the action.
a) Definitions and distinction

If the property is sold and the sale confirmed by the Forcible entry where one is deprived of physical
court, possession of real property by means of force,
intimidation, strategy, threats or stealth.
a. the judgment shall state the name of the
purchaser or purchasers and a definite Unlawful detainer - where one illegally withholds
description of the parcels of real estate sold possession after the expiration or termination of his
to each purchaser, and right to hold possession under any contract, express
b. the effect of the judgment shall be to vest or implied.
the real estate in the purchaser or
purchasers making the payment or
Forcible Entry Unlawful Detainer
payments, free from the claims of any of the
parties to the action.
Possession of The physical possession
defendant is unlawful is lawful from the
from the beginning
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

beginning but becomes


illegal afterwards
A person deprived of the possession of any land or
Does not require Demand to vacate is building by
demand to vacate required
Pg.
1. force,
Plaintiff must prove No need to prove prior 113
2. intimidation,
that he was in prior posession 3. threat,
possession 4. strategy, or
5. stealth, or
The one year period The one year period 6. a lessor, vendor, vendee, or other person
starts form the actual counts from the date of against whom the possession of any land or
entry the demand building is unlawfully withheld after the
expiration or termination of the right to hold
possession, by virtue of any contract,
express or implied, or the legal
b) Distinguished from accion publiciana, accion representatives or assigns of any such lessor,
reivindicatoria and accion interdictal vendor, vendee, or other person,

Acction Acction Accion


Publiciana Reinvindicatoria Interdictal May, at any time within one (1) year after such
unlawful deprivation or withholding of possession,

A plenary An action for the Action for Bring an action in the proper Municipal Trial
ordinary civil recovery of the eviction. Court against the
action for the exercise of Comprises 1. person or persons unlawfully
recovery of the ownership, of two withholding or depriving of
better right of particularly cause of possession, or
possession recovery of action, 2. any person or persons claiming
possession as an forcible under them,
attribute or entry and
incident of unlawful
ownership detainer. For the restitution of such possession, together with
damages and costs.

Lessor to proceed against lessee only after demand.


c) How to determine jurisdiction in accion
publiciana, accion reivindicatoria and accion
Unless otherwise stipulated, such action by the lesser
interdictal
shall be commenced only
Forcible entry and unlawful detainer is within the
original exclusive jurisdiction of MTC irrespective of 1. after demand to pay or comply with the
the amount of unpaid rents. But the acitons must be conditions of the lease and to vacate is made
made within 1 year from the actual entry (FE) or from upon the lessee, or
the receipt of the demand (UD). 2. by serving written notice of such demand
upon the person found on the premises if no
Accion publiciana and accion reinvindicatoria are person be found thereon, and
both real actions, and therefore, the jurisdiction and
venue on real actions applies. The lessee fails to comply therewith after fifteen (15)
days in the case of land or five (5) days in the case of
d) Who may institute the action and when; against buildings.
whom the action may be maintained
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

e) Pleadings allowed disturb the proceedings or to impair the respect due


to such body.
The only pleadings allowed to be filed are the

a) complaint, a) Kinds of contempt


b) compulsory counterclaim and Pg.
c) cross-claim pleaded in the answer, 1. Direct 114
d) and the answers thereto. 2. Indirect
3. Criminal
All pleadings shall be verified. 4. Civil
5. Inside
f) Action on the complaint 6. Outside
From an examination of the allegations in the Rule in direct contempt:
complaint and such evidence as may be attached
thereto,
A person guilty of
The court may dismiss the case outright on any of the
grounds for the dismissal of a civil action which are 1. misbehavior in the presence of or so near a
apparent therein court as to obstruct or
2. interrupt the proceedings before the same,
If no ground for dismissal is found, it shall forthwith including
issue summons a. disrespect toward the court,
b. offensive personalities toward
Answers
others, or
c. refusal to be sworn or to answer as
Within ten (10) days from service of summons,
a witness, or
d. to subscribe an affidavit or
1. the defendant shall file his answer to the
complaint and deposition when lawfully required
2. serve a copy thereof on the plaintiff. to do so,

may be summarily adjudged in contempt by


Gen rule: Affirmative and negative defenses not such court and
pleaded therein shall be deemed waived,
punished by a
o fine not exceeding two thousand
Exception: lack of jurisdiction over the subject
pesos or imprisonment not
matter.
exceeding ten (10) days, or both, if
Cross-claims and compulsory counterclaims not it be a Regional Trial Court or a
asserted in the answer shall be considered barred. court of equivalent or higher rank,
or
The answer to counterclaims or cross-claims shall be o by a fine not exceeding two
served and filed within ten (10) days from service of hundred pesos or imprisonment
the answer in which they are pleaded. not exceeding one (1) day, or both,
if it be a lower court.
3.19.13. Contempt
Contempt- a disregard of, or disobedience to the The person adjudged in direct contempt by any court
rules or orders of a judicial body, or an interruption of may not appeal therefrom,
its proceedings by disorderly behavior or insolent
language, in its presence or so near thereto as to
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

Remedy: not constituting direct contempt under


section 1 of this Rule;
But may avail himself of the remedies of certiorari or d. Any improper conduct tending, directly or
prohibition. indirectly, to impede, obstruct, or degrade
the administration of justice; Pg.
The execution of the judgment shall be suspended e. Assuming to be an attorney or an officer of 115
pending resolution of such petition, a court, and acting as such without
authority;
a. provided such person files a bond fixed by f. Failure to obey a subpoena duly served;
the court which rendered the judgment and g. The rescue, or attempted rescue, of a
b. conditioned that he will abide by and person or property in the custody of an
perform the judgment should the petition be officer by virtue of an order or process of a
decided against him. court held by him.

Rule in indirect contempt But nothing in this section shall be so construed as to


prevent the court from:
Requirements for indirect contempt:
a. issuing process to bring the respondent into
a. After a charge in writing has been filed, and court, or
b. An opportunity given to the respondent to b. holding him in custody pending such
comment thereon within such period as may proceedings
be fixed by the court and
c. An opportunity to be heard by himself or How initiated
counsel
Proceedings for indirect contempt may be initiated
Grounds for contempt:
a. motu propio by the court against which the
a. Misbehavior of an officer of a court in the contempt was committed by an order or
performance of his official duties or in his b. any other formal charge requiring the
official transactions; respondent to show cause why he should
b. Disobedience of or resistance to a lawful not be punished for contempt.
writ, process, order, or judgment of a court,
including the act of a person who, after being
dispossessed or ejected from any real In all other cases, charges for indirect contempt shall
property by the judgment or process of any be commenced by:
court of competent jurisdiction, enters or
attempts or induces another to enter into or a. a verified petition with supporting
upon such real property, for the purpose of particulars and
executing acts of ownership or possession, b. certified true copies of documents or papers
or in any manner disturbs the possession involved therein, and
given to the person adjudged to be entitled c. upon full compliance with the requirements
thereto; for filing initiatory pleadings for civil actions
c. Any abuse of or any unlawful interference in the court concerned.
with the processes or proceedings of a court
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

If the contempt charges arose out of or are related


to a principal action pending in the court,

The petition for contempt shall allege that fact but


said petition shall be docketed, heard and decided Pg.
separately, 116

Exception: the court in its discretion orders the


consolidation of the contempt charge and the
principal action for joint hearing and decision.

Punishment for indirect contempt

If the respondent is adjudged guilty of indirect


contempt committed against a Regional Trial Court or
a court of equivalent or higher rank, he may be
punished by a fine not exceeding thirty thousand
pesos or imprisonment not exceeding six (6) months,
or both. If he is adjudged guilty of contempt
committed against a lower court, he may be punished
by a fine not exceeding five thousand pesos or
imprisonment not exceeding one (1) month, or both.
If the contempt consists in the violation of a writ of
injunction, temporary restraining order or status quo
order, he may also be ordered to make complete
restitution to the party injured by such violation of
the property involved or such amount as may be
alleged and proved.
REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

IV. SPECIAL PROCEEDINGS 4.1. SETTLEMENT OF ESTATE, VENUE AND


PROCESSES (Rule 73)
Special Procedure - A special proceeding is a remedy
by which a party seeks to establish a status, a right, or 4.1. 1. Which court has jurisdiction
a particular fact. Sec. 3, Rule 1 of the Rules of Court. Pg.
According to R.A. 7691, the jurisdiction is as follows: 117
Coverage: Sec. 3, Rule 72
If within Metro Manila does not exceed 400K, MTC.
a. Settlement of estate of deceased persons;
If it exceeds, RTC.
b. Escheat;
c. Guardianship and custody of children; If outside Metro Manila does not exceed 300K, MTC.
d. Trustees; If exceeds, RTC.
e. Adoption;
f. Rescission and revocation of adoption; 4.1. 2. Venue in judicial settlement of estate
g. Hospitalization of insane persons;
h. Habeas corpus; If the decedent is resident at the time of his death,
i. Change of name; his will shall be proved, letters of administration be
j. Voluntary dissolution of corporations; approved, and estate be settled in court of the
province where he resides.
k. Judicial approval of voluntary recognition of
minor natural children;
In case of non-resident decedent, in the Court where
l. Constitution of family home; he had the estate.
m. Declaration of absence and death;
n. Cancellation of correction of entries in the In probate proceedings, residence means bodily
civil registry. presence as an inhabitant in a given place as
The enumeration under Rule 72 is not exclusive. distinguished in domicile which includes an intention
Petition for declaration of nullity of marriage, to return.
liquidation proceeding, etc are also regarded as under
special procedure. 4.1. 3. Extent of jurisdiction of probate court
Contest of jurisdiction
Applicability of rules in civil action

I the absence of special provisions, the rules provided General Rule: The jurisdiction shall not be contested
for in ordinary actions shall be, as far as practicable, so far as it depends on the place of the decedent or
applicable in special proceedings. Sec. 2, Rule 72 of location of his estate.

Therefore in probate proceedings certificate of forum Exceptions:


shopping, docket fees, explanation of non-personal
service are still required because there is no special 1. Appeal from that court in the original case
provision regarding those requirements. Sheker vs 2. When want of jurisdiction appears on the
Sheker, Dec 13, 2007. record

Probate proceedings

If there is a will, it is a testate proceeding. If there is


none, or the will is defective, it will be intestate
proceeding.
REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

If theres a will, probate of the will is necessary. deceased left no will, or theres a will but he failed to
name an executor therein.
Can probate court issue writ of execution?
Exception where the estate should be judicially
No. Because it refers the adjudication of the claims to administered: Pg.
the administrator. 118
1. Extrajudicial settlement
Exceptions: 2. Summary settlement of estate of small value

1. Satisfy the contributive shares of the


devisees, legatees, and heirs on the 4.2.1. Extrajudicial settlement by agreement
possession of decedents assets as laid down between heirs, when allowed
in Rule 88, Sec. 6.
2. Enforce payment of the expenses for Extrajudicial settlement by agreement between
partition under Rule 90, Sec. 3. heirs. Sec. 1, Rule 74
3. To satisfy the costs when a person is cited for
examination of probate proceedings under 1. If the decedent left no will and
Rule 142, Sec. 13. 2. no debts and
3. the heirs are all of age, or the minors are
represented by their judicial or legal
4.1.4. Powers and duties of probate court representatives duly authorized for the
purpose,
Courts of First Instance may issue warrants and The parties may without securing letters of
process necessary administration, divide the estate among themselves
as they see fit by means of:
1. to compel the attendance of witnesses or
2. to carry into effect theirs orders and a. Public Instrument
judgments, and all other powers granted A public instrument filed in the office of the register
them by law. of deeds
If a person does not perform an order or judgment
rendered by a court in the exercise of its probate b. Stipulation pending partition
jurisdiction, Should they disagree, they may do so in an ordinary
action of partition
it may issue a warrant for the apprehension
and imprisonment of such person until he c. Affidavit of Self-Adjudication
performs such order or judgment, or is If there is only one heir, he may adjudicate to himself
released. the entire estate by means of an affidavit filled in the
office of the register of deeds.

4.2. SUMMARY SETTLEMENT OF ESTATES Affidavit of self-adjudication affidavit required


(Rule 74) under Rule 74 Sec. 1 to be executed by the sole heir
of the deceased person in adjudicating to himself the
As a rule, when a person died leaving a property, it entire estate left by the decedent. It is filed with the
must be judicially administered. The court must Registry of Deeds.
appoint a qualified administrator in case the
REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

As condition precedent of extrajudicial settlement, a If it shall appear that within 2 years, an heir or other
bond shall be simultaneously filed with the said person has been unduly deprived of lawful
register of deeds, participation in the estate, they may compel
settlement of estate for purpose of satisfying their
1. In an amount equivalent to the value of lawful participation. Sec. 4, Rule 74 Pg.
the personal property involved 119
2. As certified to under oath by the parties Debts and lawful participation payable in money
concerned and
3. Conditioned upon the payment of any If it shall appear within 2 years that there debts
just claim that may be filed under outstanding against the estate which have not been
section 4 of this rule. paid, or an heir or other person has been unduly
deprived of lawful participation payable in money,

4.2.2. Two-year prescriptive period The court may, by order for that purpose, after
hearing:
It shall be presumed that the decedent left no debts
if no creditor files a petition for letters of Settle the amount of such debts or lawful
administration within two (2) years after the death of participation and
the decedent. Order how much and in what manner each
distributee shall contribute in the payment
4.2.3. Affidavit of self-adjudication by sole heir thereof, and may issue execution, if
circumstances require, against the bond
If there is only one heir, he may adjudicate to himself provided in the preceding section or against
the entire estate by means of an affidavit filed in the the real estate belonging to the deceased, or
office of the register of deeds. both.

4.2.4. Summary settlement of estates of small


value, when allowed Person who had no knowledge or had not
participated in the extrajudicial settlement are not
Requirements:
bound by the 2 years limitation
1. Gross value of estate does not exceed
The provisions of Sec 4, Rule 74 barring distribute or
10,000, testate or intestate
heirs form objecting to extrajudicial partition after
2. Petition by any person before CFI having
two years is applicable only to person who has
jurisdiction
knowledge of it. People who have no knowledge of it
3. Publication of notice of hearing once a week
or had not participated in the extrajudicial settlement
in every three weeks in newspaper of
are not bound by 2 years limitation because the Sec.
general circulation
1 Rule 72 is an ex parte proceeding. Publication of the
4. Upon hearing, which should 1-3 months
settlement does not constitute constructive notice
from the last publication of notice.
because the same was notice after the fact of
5. After such notice to other persons as the
execution Benatiro vs Cuyos, 560 SCRA 478 2008.
court may direct, Sec. 2, Rule 74
Period for claim of minor or incapacitated person.
4.2.5. Remedies of aggrieved parties after Sec. 5, Rule 74
extrajudicial settlement of estate
If after two years, and the heir and other person is a
Lawful participation
REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

1. minor or
2. mentally incapacitated or
3. in prison or Doctrine of estoppels is not applicable in probate
4. outside of the Philippines, proceedings
Pg.
He may present his claim within one (1) year Since the presentation and probate of a will are 120
after such disability is removed. required by public policy. Fernandez et al, vs
Dimagiba, L-23638, Oct 12, 1967

Probate of a will is not subject to prescription


4.3. PRODUCTION AND PROBATE OF A
WILL (Rule 75) As such, petition may be filed at any time and is
required by public policy. Guevarra vs Guevarra, 98
No will shall pass either real or personal estate unless Phil 249
it is proved and allowed in the proper court. Sec. 1,
Rule 75Probate or allowance of wills an act of 4.3.2. Who may petition for probate; persons
proving in a court a document purporting to be the entitled to notice
last will and testament of a certain deceased person
for the purpose of its official recognition, registration Any executor, devisee, or legatee named in a will, or
and carrying out of its provisions in so far as they are any other person interested in the estate, may, at any
in accordance with the law. time after the death of the testator, petition the court
having jurisdiction to have the will allowed, whether
4.3.1. Nature of probate proceeding the same be in his possession or not, or is lost or
destroyed.
Probate proceedings are proceedings in rem. Once
probated, it binds the whole world even the state. The testator himself may, during his lifetime, petition
the court for the allowance of his will. Sec. 1, Rule 76
Allowance of will is conclusive as to its due execution

Subject to the right of appeal, such allowance of the


will shall be conclusive as to its due execution. And it 4.4. ALLOWANCE OF A WILL (Rule 76)
cannot be impugned on any grounds except that of
fraud, in any separate or independent proceeding. 4.4. 1. Contents of petition for allowance of will
Sec. 1, Rule 75
Contents of the Petition:
Concept and meaning of due execution:
a. The jurisdictional facts;
1. The will was executed in accordance with the b. The names, ages, and residences of the
strict formalities of the law; heirs, legatees, and devisees of the testator
2. The testator was of sound and disposing or decedent;
mind at the time of the execution of the will; c. The probable value and character of the
3. Consent is not vitiated by any duress, fear, property of the estate;
and threats d. The name of the person for whom letters are
4. The will was not procured by any undue prayed;
influence from the beneficiary or by some e. If the will has not been delivered to the
other person for his benefits court, the name of the person having
5. The signature of the testator is genuine custody of it.
REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

But no defect in the petition shall render void the attached a copy of the will, shall be filed and recorded
allowance of the will, or the issuance of letters by the clerk, and the will shall have the same effect as
testamentary or of administration with the will if originally proves and allowed in such court. Sec. 3,
annexed. Sec. 2, Rule 76 Rule 77
Pg.
4.4. 2. Grounds for disallowing a will What must be proved during the re-probate 121
proceeding:
The will shall be disallowed in any of the following
cases: a. That the testator was domiciled in the
foreign country
a) If not executed and attested as required by b. That the will has been admitted to probate
law; in such country
b) If the testator was insane, or otherwise c. That the foreign court was, under the laws of
mentally incapable to make a will, at the said foreign county, a probate court with
time of its execution; jurisdiction over the proceedings
c) If it was executed under duress, or the d. The laws on probate procedure in said
influence of fear, or threats; country and proof of compliance therewith
d) If it was procured by undue and improper e. Leal requirements in the said foreign country
pressure and influence, on the part of the for valid execution of a will Fluemer vs Hix 54
beneficiary, or of some other person for his Phil 610
benefit;
e) If the signature of the testator was procured
by fraud or trick, and he did not intend that 4.4.4. Effects of probate
the instrument should be his will at the time
of fixing his signature thereto. Sec. 9, Rule 76 Subject to the right of appeal, such allowance of the
will shall be conclusive as to its due execution. And it
cannot be impugned on any grounds except that of
4.4. 3. Reprobate (Rule 77) fraud, in any separate or independent proceeding.
Sec. 1, Rule 75
a) Requisites before a will proved abroad would be
allowed in the Philippines: What are the effects of allowance of will proven
outside the Philippines?
1. A copy of the will and order or decree of the
allowance, must be duly authenticated 1. The will shall be treated as if originally
2. A petition must be filed by the executor or proved and allowed in Philippine Courts
other persons interested, with the 2. Letters testamentary or administration with
documents mentioned. a will annexed shall extend to all estates in
The court shall fix a time and place for the hearing, the Philippines
and cause notice thereof to be given as in case of an 3. After the payment of debts and expenses of
original will presented for allowance. administration, the residue of the estate
shall be disposed of as provided by law in
When will allowed, and effect thereof. cases of estate in the Philippines belonging
to persons who are inhabitants of another
If it appears at the hearing that the will should be state or country, Sec. 4, Rule 77
allowed in the Philippines, the shall so allow it, and a
certificate of its allowance, signed by the judge, and
attested by the seal of the court, to which shall be
REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

4.5. LETTERS TESTAMENTARY AND OF 4.5. 1. When and to whom letters of


ADMINISTRATION (Rule 78) administration granted

Letters testamentary it is an authority issued to an If no executor is named in the will, or the executor or
executor named in the will to administer the estate executors are incompetent, refuse the trust, or fail to Pg.
give bond, or a person dies intestate, 122
When a will has been proved and allowed, the court
shall issue letters testamentary thereon to the person 4.5. 2. Order of preference
named as executor therein, if he is competent, Order of preference is the executor is incompetent:
accepts the trust, and gives bond as required by these
rules. Sec. 4, Rule 78 a) To the surviving husband or wife, as the case
may be, or next of kin, or both, in the
Letters of administration it is an authority issued by discretion of the court, or to such person as
the court to a competent person to administer the such surviving husband or wife, or next of
estate of the deceased who died intestate. kin, requests to have appointed, if
competent and willing to serve;
Executor person named expressly by the deceased b) If such surviving husband or wife, as the case
person in his will to administer, settle and liquidate may be, or next of kin, or the person selected
his estate. by them, be incompetent or unwilling, or if
the husband or widow, or next of kin,
Administrator person appointed by the intestate
neglects for thirty (30) days after the death
court to administer the estate of the deceased person
of the person to apply for administration or
who:
to request that administration be granted to
a. Dies without leaving a will some other person, it may be granted to one
b. Did not name any executor even if there was or more of the principal creditors, if may be
a will granted to one or more of the principal
c. If there be one named, he is incompetent, creditors, if competent and willing to serve;
refuses the trust, or fails to give a bond c) If there is no such creditor competent and
d. Or that the will, subsequently, declared null willing to serve, it may be granted to such
and void other person as the court may select. Sec. 6,
Rule 78

Incompetent persons to serve as executors or


administrators:
Q: Can the court set aside the order of preference?
1. Minor
A: No. The Rules of Court provides an order of
2. Not resident of the Philippines
preference in the appointment of an administrator.
3. In opinion of the court unfit to execute the
Ventura vs Ventura 160 SCRA 810
duties of trust by reason of drunkenness,
improvidence, or want of understanding or Scope or limit of administration
integrity, or by reason of conviction of an
offense involving moral turpitude. General rule universally recognized is that
administration extends only to the assets of a
decedent found within the state or country where it
was granted, so that an administrator appointed in
REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

one state or country has no power over the property 2. Make examine and make invoices of the
in another state or country. Sec. 4, Rule 78 property belonging to such partnership; and
the surviving partner or partners
4.5. 3. Opposition to issuance of letters 3. An executor or administrator shall maintain
testamentary; simultaneous filing of petition in tenanble repair the houses and other Pg.
for administration (Rule 79) structures and fences belonging to the 123
estate, and deliver the same in such repair to
Any person interested in a will may state in writing
the heirs or devisees when directed so to do
the grounds why letters testamentary should not
by the court.
issue to the persons named therein as executors, or
4. An executor or administrator hall have the
any of them, and the court, after hearing upon notice,
right to the possession and management of
shall pass upon the sufficiency of such grounds.
the real as well as the personal estate of the
A petition may, at the time, be filed for letters of deceased so long as it is necessary for the
administration with the will annexed. Sec. 1, Rule 79. payment of the debts and the expenses of
administration.
Contents of the petition: The right to possession and management is not
A petition for letters of administration must be filed absolute
by an interested person and must show, so far as
The right of an executor or administrator to the
known to the petitioner:
possession and management of the real and personal
a) The jurisdictional facts; properties o the deceased is not absolute and can
b) The names, ages, and residences of the only be exercised so long as it is necessary for the
heirs, and the names and residences of the payment of the debts and expenses of the
creditors, of the decedent; administration. Estate of Hilario Ruiz vs CA, 252
c) The probable value and character of the SCRA 541
property of the estate;
d) The name of the person for whom letters of In exercise of these powers, there is no need for leave
administration are prayed. of court. Constitution of lease over property of the
estate is an act of administration, therefore does not
But no defect in the petition shall render void the require leave of court. San Diego vs Nombre, L-
issuance of letters of administration. Sec.2, Rule 79 19265, May 29 1964

Acts not considered as administration (requires


leave of court):
4.5. 4. Powers and duties of executors and
1. Right of redemption over a partition of the
administrators; restrictions on the powers (Rule
property owned in common sold by one of
84) the co-owners since this is not within the
powers of administration.
The general powers and duties of executors are the
2. Where estate of a deceased person is
following, Rule 84 Sec. 1-3:
already subject of testate or intestate
1. The executor or administrator of the estate proceeding, the administrator cannot enter
of a deceased partner shall at all times have into any transaction involving it without
access to, and may examine and take copies prior approval of the court.
of, books and papers relating to the
partnership business,
REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

Duties of Executors Not to profit by increase or lose by decrease in value.


Pg.
Executor or administrator chargeable with all estate 124
No executor or administrator shall profit by the
and income. Rule 85, Sec. 1 increase, or suffer loss by the decrease or destruction,
without his fault, of any part of the estate. Sec. 2,
Every executor or administrator is chargeable in his
Rule 85
account with:

a. The whole of the estate of the deceased Excess if he sells more than the appraisement
which has come into his possession, at the
value of the appraisement contained in the He must account for the excess when he sells any part
inventory; of the estate for more than the appraisement.
b. With all the interest, profit, and income of
If he sold property less than the appraisement
such estate; and
c. With the proceeds of so much of the estate
If any is sold for the less than the appraisement, he is
as is sold by him, at the price at which it was
not responsible for the loss, if the sale has justly
sold.
made.
d. Exception - Except as otherwise expressly
provided in the following sections. If he settles claim less than its nominal value

Summary of duty of the administrator to render an If he settles any claim against the estate for less than
accounting: its nominal value, he is entitled to charge in his
account only the amount he actually paid on the
The administrator or executor is under obligation to settlement.
render a true and just account of his administration
to the court. 4.5. 5. Appointment of special administrator
(Rule 80)
1. Hearing is held before an administrators
account is approved, especially is an Special administrator representative of the
interested party raises objection to certain deceased appointed by the probate court to care for
items in the accounting report. and preserve his estate until an executor or general
2. At the hearing, the practice is for administrator is appointed.
administrator to take the witness stand,
testify under oath on his accounts and When the court can appoint a special administrator-
identify the receipt vouchers and documents
evidencing his disbursements which are When there is delay in granting letters testamentary
offered as exhibits. or of administration by any cause including an appeal
3. He may be interrogated by the court and from the allowance or disallowance of a will.
coss-examined by oppositors counsel.
4. The oppositor may present proofs to rebut Appointment, upto when
the administrators evidence in support of
his accounts. The court may appoint a special administrator to take
possession and charge of the estate of the deceased
REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

until the questions causing the delay are decided and the special administrator shall cease, and he shall
executors or administrators appointed. forthwith deliver to the executor or administrator
the goods, chattels, money, and estate of the
deceased in his hands. Sec. 3, Rule 80
Pg.
Administrator Special Administrator What will happen to the suit commenced by special 125
administrator?
1. Appointed when a 1. Special
decedent died administrator is The executor or administrator may prosecute to final
intestate or did not appointed when judgment suits commenced by such special
appoint any there is delay in administrator.
executor in his will granting letters
or the will is testamentary or 4.5. 6. Grounds for removal of administrator
subsequently administration (Rule 82)
disallowed 2. Not obliged to pay
2. Obliged to pay the the debts Administration is revoked if will is discovered
debts of the estate 3. The appointment is
When a will is later discovered, what will happen to
3. The appointment regarded as
letters of administration previously granted?
may be subject of interlocutory,
appeal therefore not
If after letters of administration have been granted
subject to appeal
on the estate of a decedent as if he had died intestate,
his will is proved and allowed by the court,
Powers and duties of special adminsitrator. Sec. 2,
Rule 80. 1. the letters of administration shall be
revoked and
Such special administrator shall:
2. all powers thereunder cease, and
1. Take possession and charge of the goods, 3. the administrator shall forthwith surrender
chattels, rights, credits, and estate of the the letters to the court, and
deceased and 4. render his account with such time as the
2. Preserve the same for the executors or court directs.
administrator afterwards appointed, and Proceeding for the issuance of letters testamentary or
3. For that purpose may commence and of administration under the will shall be as
maintain suits as administrator. hereinbefore provided.

Grounds when the court may remove or accept


He may sell only such perishable and other property resignation of an administrator:
as the court orders sold. A special administrator shall
1. If an executor or administrator neglects to
not be liable to pay any debts of the deceased unless
render his account and settle the estate
so ordered by the court.
according to law, or
2. Fails to perform an order or judgment of the
When powers of special administrator cease.
court, or a duty expressly provided by these
Transfer of effects. Pending suits.
rules, or
When letters testamentary or of administration are 3. Absconds, or becomes insane, or otherwise
granted on the estate of the deceased, the powers of incapable or insuitable to discharge the
trust,
REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

The court may remove him, or in its discretion, may 4.6.1. Time within which claims shall be filed;
permit him to resign. Sec. 2, Rule 82 exceptions

When an executor or administrator dies, resign, or is In the notice provided in the preceding section,
removed the remaining executor or administrator Pg.
may administer the the trust alone, unless the court The court shall estate the time for the filing 126
grants letters to someone to act with him. If there is of claims against the estate, which shall not
no remaining executor or administrator, be more than twelve (12) not less than six (6)
administration may be to any suitable person. months after the date of the first publication
of the notice. The period becomes
Are the grounds enumerated therein exclusive? mandatory once the probate court fixed it.

No. The court is invested with ample discretion in the Extension for the time of filing-
removal of an administrator as long as there is
evidence of an act or omission on the part of the However, at any time before an order of distribution
administrator or conformable to or in disregard of the is entered, on application of a creditor who has failed
rules or orders of the court which it deems sufficient to file his claim within the previously limited,
or substantial to warrant the removal of
administration. the court may, for cause shown and on such
terms as are equitable, allow such claim to be
The grounds for removal of administrator is different filed within a time not exceeding one (1) month.
from removal of special administrator, in which in the
latter, there is no ground, only upon discretion of the
court. 4.6.2. Statute of non-claims

The acts of administrator before removal are valid Statute of non-claims

The lawful acts of an executor or administrator before It is the period fixed in the Sec. 2 Rule 86 for the filing
the revocation of his letters testamentary or of of claims against the estate. It mandate certain
administration, or before his resignation or removal, creditors of a deceased person to present their claims
shall have the like validity as if there had been no such for examination and allowance within a specified
revocation, resignation, or removal. Sec.3, Rule 82 period, the purpose thereof being to settle the estate
with dispatch, so that the residue may be delivered to
persons entitled thereto without their being
afterwards called upon to respond in actions for
4.6. CLAIMS AGAINST THE ESTATE (Rule 86) claims, which under the statute of limitations not yet
prescribed. Santos vs Manarang, 27 Phil 213
Immediately after granting letters testamentary or of
administration, Publication of notice to creditors.

The court shall issue a notice requiring all Every executor or administrator shall, immediately
persons having money claims against the after the notice to creditors is issued,
decedent to file them in the office of the
clerk of said court. Sec. 1, Rule 86 a. Cause the same to be published three (3)
weeks successively in a newspaper of
general circulation in the province, and
REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

b. To be posted for the same period in four Except that they may be set forth as counterclaims in
public places in the province and in two any action that the executor or administrator may
public places in the municipality where the bring against the claimants.
decedent last resided. Sec. 3, Rule 86
Where an executor or administrator commences an Pg.
Significance of the publication of notice to creditors action, or prosecutes an action already commenced 127
by the deceased in his lifetime, the debtor may set
It is a constructive notice to all; hence a creditor forth by answer the claims he has against the
cannot be permitted to file his claim beyond the decedent, instead of presenting them independently
period fixed in the said notice on the bare ground that to the court as herein provided.
he had no knowledge of the administration
proceedings. Villanueva vs PNB, L-18403, Sept 1983. Mutual claims may be set-off

Claims which must be filed under the notice. If not Mutual claims may be set off against each other in
filed, barred; exceptions. such action; and if final judgment is rendered in favor
of the defendant, the amount so determined shall be
Types of claims that must be filed before the probate considered the true balance against the estate, as
court under notice: though the claim had been presented directly before
the court in the administration proceedings.
1. All claims for money against the decent,
arising from contract, express or implied, Claims not yet due, or contingent, may be approved
whether the same be due, not due, or at their present value.
contingent,
2. All claims for funeral expenses and expense Contingent claims It is one by which, by its nature
for the last sickness of the decedent, and necessarily dependent upon an uncertain event for its
3. Judgment for money against the decent, existence and claim, and its validity and enforceability
The enumerations stated therein are exclusive. depending upon an uncertain event.
Claims other than money, debt or interest thereon
arising from contract cannot be presented in the
4.6.3. Claim of executor or administrator
testate or intestate proceedings. against the estate

If the executor or administrator has a claim against


Money claims claims for money, debt or interest
the estate he represents,
thereon upon a liability by the decedent before his
death. Claims contracted after his death cannot a. He shall give notice thereof, in writing, to the
therefore be presented with the exception of funeral court, and
expenses and expenses incurred on the last sickness b. The court shall appoint a special
of the decedent. administrator, who shall, in the adjustment
of such claim, have the same power and be
Consequence if the claims are not filed within the
subject to the same liability as the general
time in the notice-
administrator or executor in the settlement
of other claims. The court may order the
If the said claims are not filed within the time limited
executor or administrator to pay to the
in the notice, they are barred forever form presenting
special administrator necessary funds to
them.
defend such claim. Sec. 8, Rule 86.
Exception-
REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

How to file a claim. Contents thereof. Notice to administration were issued, although the court, in its
executor or administrator. discretion, and as a matter of convenience, may order
all the claims to be collected in a separate folder.
How claim is being filed-
Answer of executor or administrator. Offsets Pg.
A claim may be filed by delivering the same with the 128
necessary vouchers to the clerk of court and by Within fifteen (15) days after service of a copy of the
serving a copy thereof on the executor or claim on the executor or administrator,
administrator.
a. He shall file his answer admitting or denying
Original need not to be filed the claim specifically, and
b. Setting forth the admission or denial.
If the claim be founded on a bond, bill, note, or any c. If he has no knowledge sufficient to enable
other instrument, the original need not be filed, but a him to admit or deny specifically, he shall
copy thereof with all indorsements shall be attached state such want of knowledge. Sec. 10, Rule
to the claim and filed therewith. Sec. 9, Rule 86. 86.

When the original shall be exhibited The executor shall allege the offset, otherwise, it is
barred.
On demand, however, of the executor or
administrator, or by order of the court or judge, the The executor or administrator in his answer shall
original shall be exhibited, unless it be list or allege in offset any claim which the decedent before
destroyed, in which case the claimant must death had against the claimant, and his failure to do
accompany his claim with affidavit or affidavits so shall bar the claim forever.
containing a copy or particular description of the
instrument and stating its loss or destruction. Sec. 9, A copy of the answer shall be served by the executor
Rule 86. or administrator on the claimant. The court in its
discretion may extend the time for filing such answer.
When the claim is due, it must be supported by
affidavit stating: As a general rule, a probate court has no jurisdiction
to entertain a claim in favor of the estate against a
1. The amount justly due,
third person as the same must be the subject of
2. That no payments have been made thereon
ordinary action.
which are not credited, and
3. That there are no offsets to the same, to the The exception to this rule is provided in Rule 86, Sec.
knowledge of the affiant. Sec. 9, Rule 86. 10, as it authorizes the executor or administrator to
interpose any counterclaim in offset of a claim against
If the claim is not due, or is contingent, when filed, it the estate. Said counterclaim is regarded as
must also be supported by affidavits stating the compulsory counterclaim as the failure to file shall
particulars thereof. bar the claim forever.

When the affidavit is made by a person other than the Note the amount of the offset against must be
claimant, he must set forth therein the reason why it stated, otherwise it will be disallowed.
is not made by the claimant.
Disposition of admitted claimAny claim admitted
The claim once filed shall be attached to the record of entirely by the executor or administrator shall
the case in which the letters testamentary or of immediately be submitted by the clerk to the court
REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

who may approve the same without hearing; but the Part of estate from which debt paid when provision
court, in its discretion, before approving the claim, made by will.
may order that known heirs, legatees, or devisees be
notified and heard. Preference in the payment of debts-
Pg.
If upon hearing, an heir, legatees, or devisee opposes If the testator makes provision by his will, or 129
the claim, the court may, in its discretion, allow him designates the estate to be appropriated for the
fifteen (15) days to file an answer to the claim in the payment of his debts, the expenses of administration,
manner prescribed in the preceding section. Sec. 11, or the family expenses, they shall be paid according
Rule 86 to the provisions of the will; Sec. 2, Rule 88.

Trial of contested claim. If the provision is not sufficient for that purpose-

When the clerk will set the trial for the claim- But if the provision made by the will or the estate
appropriated, is not sufficient for that purpose, such
a. Upon the filing of an answer to a claim, or part of the estate of the testator, real or personal, as
b. Upon the expiration of the time for such is not disposed of by will, if any shall be appropriated
filing for that purpose. Sec. 2, Rule 88.

The clerk of court shall set the claim for trial 4.7. ACTIONS BY AND AGAINST
with notice to both parties. The court may ADMINISTRATORS AND EXECUTORS (Rule
refer the claim to a commissioner. Sec. 13, 87)
Rule 86.
4.7.1. Actions that may be brought against
Judgment appealable. executors and administrators

The judgment of the court approving or disapproving Actions that may not be commence-
a claim, shall be filed with the record of the
administration proceedings with notice to both No action upon a claim for the recovery of money or
parties, and is appealable as in ordinary cases. debt or interest thereon shall be commenced against
the executor or administrator;
A judgment against the executor or administrator
shall be that he pay, in due course of administration, Actions that may commence-
the amount ascertained to be due, and it shall not
create any lien upon the property of the estate, or 1. Recovery real or personal property, or an
give to the judgment creditor any priority of payment. interest therein, from the estate,
Sec. 13, Rule 86 2. To enforce a lien thereon
3. Actions to recover damages for an injury to
person or property, real or personal
4.6.4. Payment of debts
The aforementioned instances are deemed actions
If , after hearing all the money claims against the that survive the death of the decedent. Sec. 1, Rule
estate, and after ascertaining the amount of such 87
claims, it appears that there are sufficient assets to
pay the debts, the executor or administrator pay the When an executor or administrator is appointed and
same within the time limited for that purpose. Sec. 1, assumes the trust, the following actions cannot be
Rule 88. maintained by him by an heir or devisee:
REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

1. Action to recover the title or possession of mortgage, may be foreclosed by the executor or
lands administrator. Sec. 5, Rule 87
2. Action for damages done to such lands shall
Until when- Proceedings when property concealed, embezzled,
or fraudulently conveyed. Rule Pg.
Until there is an order of the court assigning such 130
lands to such heir or devisee or until the time allowed if an executor or administrator, heir, legatee, creditor
for paying debts has expired. or other individual interested in the estate of the
deceased, complains to the court having jurisdiction
As a rule, heirs have no standing to court to sue for of the estate that:
recovery of estate represented by an executor or
1. a person is suspected of having concealed,
administrator during the pendency of administrative
embezzled, or conveyed away any of the
probate proceedings.
money, goods, or chattels of the deceased,
Exceptions: or
2. that such person has in his possession or has
1. If the executor or administrator is unwilling knowledge of any deed, conveyance, bond,
to bring suit contract, or other writing which contains
2. When the executor or administrator is made evidence of or tends or discloses the right,
a party defendant where he is alleged t have title, interest, or claim of the deceased,
participated in the act complained of
3. No appointed executors or administrators The court may cite such suspected person to
4. appear before it any may examine him on
Judicial declaration of ownership of an heir is not oath on the matter of such complaint; and
necessary to assert his right if the person so cited refuses to appear, or
to answer on such examination or such
As provided in Art. 777 of the Civil Code, the rights to interrogatories as are put to him, the court
succession are transmitted from the moment of may punish him for contempt, and may
death of the decedent. A judicial declaration of commit him to prison until he submits to
heirship is not necessary in order for an heir to asset the order of the court. Sec. 6, Rule 87.
his right to the property of a deceased.
Form of the interrogatories and answers
Executor or administrator may compound with
debtor. The interrogatories put any such person, and his
answers thereto, shall be in writing and shall be filed
Within the approval of the court, an executor or
in the clerk's office.
administrator may compound with the debtor of the
deceased for a debt due, and may give a discharge of Person entrusted with estate compelled to render
such debt on receiving a just dividend of the estate of account.
the debtor. Sec. 4, Rule 87
The court, on complaint of an executor or
Mortgage due estate may be foreclosed administrator, may-

A mortgage belonging to the estate of a deceased a. Cite a person entrusted by an executor or


person, as mortgagee or assignee of the right or a administrator with any part of the estate of
the deceased to appear before it, and
REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

b. Require such person to render a full account,


on oath, of the money, goods, chattels, The executor or administrator may
bonds, account, or other papers belonging to commence and prosecute to final judgment
such estate as came to his possession in trust an action for the recovery of such property,
for such executor or administrator, and of right, interest, debt, or credit for the benefit Pg.
his proceedings thereon; and if the person so of the creditors; Sec. 9, Rule 87 131
cited refuses to appear to render such
account, the court may punish him for The executor is not bound to commence such action-
contempt as having disobeyed a lawful order
of the court. Sec. 7 Rule 87 But he shall not be bound to commence the action
unless on application of the creditors of the deceased.

Embezzlement before letters Unless the following requisites are present:

If a person, before the granting of letters a. The creditors making the application pay
testamentary or of administration on the estate of the such part of the costs and expenses, or
deceased, embezzles or alienates any of the money, b. Give security therefor to the executor or
goods, chattels, or effects of such deceased, administrator, as the court deems
equitable.
Such person shall be liable to an action in
favor of the executor or administrator of 4.7.2. Requisites before creditor may bring an
the estate for double the value of the action for recovery of property fraudulently
property sold, embezzled, or alienated, to conveyed by the deceased
be recovered for the benefit of such estate.
Sec. 8, Rule 87. When creditor may bring action. Lien for costs.

Property fraudulently conveyed by deceased may be When there is such a deficiency of assets, and the
recovered. deceased in his lifetime had made or attempted such
a conveyance, as is stated in the last preceding
When executor or administrator must bring action. section (Sec. 9, Rule 87) , and the executor or
administrator has not commenced the action therein
When there is a deficiency of assets in the hands of provided for-
an executor or administrator for the payment of
debts and expenses of administration, and Any creditor of the estate may, with the
permission of the court, commence and
a. The deceased in his lifetime had conveyed prosecute to final judgment, in the name of
real or personal property, or a right or the executor or administrator, a like action
interest therein, or an debt or credit, with for the recovery of the subject of the
intent to defraud his creditors or to avoid conveyance or attempted conveyance for
any right, debt, or duty; or the benefit of the creditors. Sec. 10, Rule 87
b. The deceased had ad so conveyed such
property, right, interest, debt or credit that
by law the conveyance would be void as Bond is required-
against his creditors, and the subject of the
attempted conveyance would be liable to But the action shall not be commenced until the
attachment by any of them in his lifetime, creditor has filed in a court a bond executed to the
REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

executor or administrator, in an amount approved by and recover their respective shares from the
the judge, conditioned to indemnify the executor or executor or administrator, or any other
administrator against the costs and expenses person having the same in his possession.
incurred by reason of such action. Sec. 1, Rule 90.
Pg.
Such creditor shall have a lien upon any judgment 132
recovered by him in the action for such costs and When there is a controversy
other expenses incurred therein as the court deems
equitable. If there is a controversy before the court as to who
are the lawful heirs of the deceased person or as the
When bond is not necessary- distributive shares to which each person is entitled
under the law, the controversy shall be heard and
Where the conveyance or attempted conveyance had decided as in ordinary cases.
been made by the deceased in his lifetime in favor of
the executor or administrator, the action which a No distribution until payment of obligations,
credit may bring shall be in the name of all the exception is the filing of bond.
creditors, and permission of the court and filing of
bond as above prescribed, are not necessary. No distribution shall be allowed until the payment of
the obligations above mentioned has been made or
Note Even if the administration have already been provided for, unless the distributees, or any of them,
commenced, the heirs may still bring the suit if an give a bond, in a sum to be fixed by the court,
administrator has not yet been appointed. This is conditioned for the payment of said obligations
proper modality despite the total lack of within such time as the court directs. Sec. 1, Rule 90.
adverterence to the heirs in the rules of party
representation, Sec. 3 Rule 3, and Sec. 2 of Rule 87. In By whom expenses of partition paid.
fact, in the case of Gochan vs Young, the court
recognized the legal standing of the heirs to represent If at the time of distribution the executor or
the rights and property o the decedent under administrator has retained sufficient effects in his
administration pending appointment of an hands which may lawfully be applied for the expenses
administrator. of partition of the properties distributed,

such expenses of partition may be paid by


4.8. DISTRIBUTION AND PARTITION (Rule
such executor or administrator when it
90)
appears equitable to the court and not
inconsistent with the intention of the
When the debts, funeral charges, and expenses of
testator;
administration, the allowance to the widow, and
inheritance tax, if any, chargeable to the estate in Otherwise, they shall be paid by the parties in
accordance with law, have been paid, proportion to their respective shares or interest in the
premises, and the apportionment shall be settled and
The court, on the application of the executor allowed by the court,
or administrator, or of a person interested in
the estate, and after hearing upon notice, If any person interested in the partition does not pay
shall assign the residue of the estate to the his proportion or share, the court may issue an
persons entitled to the same, naming them execution in the name of the executor or
and the proportions, or parts, to which each administrator against the party not paying the sum
is entitled, and such persons may demand assessed.Sec. 3, Rule 90
REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

4.8.1. Liquidation a. Motion with the probate court for delivery


to him of his share.
Liquidation determination of al assets of the estate b. If the estate proceeding had been closed, he
and payment of all debts and expenses. should file a motion for reopening of the
proceeding, within the prescriptive period Pg.
4.8.2. Project of partition and not to file an independent action of 133
project of partition which, would be tried by
Effect of final decree of distribution of the estate
another court which may thus reverse a
decision or order .
It vests the title to the land of the estate in the
distributees. If the decree Is erroneous, it should be
corrected by an opportune appeal, for once becomes 4.8.4. Instances when probate court may issue
final, its binding effect is like any other judgment in writ of execution
rem, unless properly set aside for lack or jurisdiction
The probate court may issue writ of execution on the
or fraud.
following instances:
Where the court has validly issued a decree of 1. Satisfy the contributive shares of the
distribution and the same has become final, the devisees, legatees, and heirs on the
validity or invalidity of the project of partition possession of decedents assets as laid down
becomes irrelevant. Vda. De Kolayco vs Tengo 207 in Rule 88, Sec. 6.
SCRA 600 2. Enforce payment of the expenses for
partition under Rule 90, Sec. 3.
When the probate court loses jurisdiction 3. To satisfy the costs when a person is cited for
examination of probate proceedings under
Only after the payment of all debts and the remaining
Rule 142, Sec. 13.
estate delivered to the heirs entitled to receive them.

The finality of the approval of the project of partition


itself alone does not terminate the proceedings. As
4.9. TRUSTEES (Rule 98)
long as the order of distribution of the estate has not
4.9.1. Distinguished from
been complied with, the probate proceeding cannot
executor/administrator
be deemed closed and terminated. Guilas vs Judge of
CFI Pampanga, 43 SCRA 11
Trustees Executor/administrator
Recording the order of partition of estate.
An instrument or agent An executor is the
Certified copies of final orders and judgments of the of the cestui que trust, person named in the
court relating to the real estate or the partition who acquires no
beneficial interest in will to administer the
thereof shall be recorded in the registry of deeds of
the estate; he merely decedents estate and
the province where the property is situated. Sec. 4,
took the legal estate carry out the
Rule 90 only as the proper provisions thereof.
execution of the trust
4.8.3. Remedy of an heir entitled to residue but required; and, his
not given his share estate ceases upon the An administrator is
fulfillment of the the person appointed
Remedy of an heir who has not received his share testators wishes, in by the court to
which case, the same administer the estate
REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

vest absolutely in the where the decedent


beneficiary. died intestate, or
where the will was 4.9.3. Requisites for the removal and
Duties are usually void and not allowed resignation of a trustee
governed by the to probate, or where Pg.
intention of the no executor was When a trustee under a written instrument declines, 134
trustor or the parties named in the will, or resigns, dies or removed before the objects of the
if established by a the executor named trust are accomplished, and no adequate provision is
contract. Duties may therein is made in such instrument for supplying the vacancy,
cover a wider range. incompetent or the proper Court of First Instance may, after due
refuses to serve as notice to all persons interested, appoint a new
such. trustee to act alone or jointly with the others, as the
case may be. Such new trustee shall have and exercise
Duties are fixed the same powers, right, and duties as if he had been
and/or limited by law. originally appointed, and the trust estate shall vest in
him in like manner as it had vested or would have
vested, in the trustee in whose place he is substituted
and the court may order such conveyance to be made
4.9.2. Conditions of the bond by the former trustee or his representatives, or by the
other remaining trustees, as may be necessary or
The following conditions shall be deemed to be part proper to vest the trust estate in the new trustee,
of the bond whether written therein or not; either or jointly with the others.

a) That the trustee will make and return to the 4.9.4. Grounds for removal and resignation of a
court, at such time as it may order, a true trustee
inventory of all the real and personal estate
belonging to him as trustee, which at the The proper Court of First Instance may, upon petition
time of the making of such inventory shall of the parties beneficially interested and after due
have come to his possession or knowledge; notice to the trustee and hearing, remove a trustee if
b) That he will manage and dispose of all such such removal appears essential in the interest of the
estate, and faithfully discharge his trust in petitioner.
relation thereto, according to law and the
will of the testator or the provisions of the The court may also, after due notice to all persons
instrument or order under which he is interested, remove a trustee who is:
appointed; a. Insane or
c) That he will render upon oath at least once a b. Otherwise incapable of discharging
year until his trust is fulfilled, unless he is his trust or evidently unsuitable
excused therefrom in any year by the court, therefor.
a true account of the property in his hands A trustee, whether appointed by the court or under a
and the management and disposition written instrument, may resign his trust if it appears
thereof, and will render such other accounts to the court proper to allow such resignation.
as the court may order;
d) That at the expiration of his trust he will 4.9.5. Extent of authority of trustee
settle his account in court and pay over and
When the sale or encumbrance of any real or
deliver all the estate remaining in his hands,
personal estate held in trust is necessary or
or due from him on such settlement, to the
expedient, the court having jurisdiction of the trust
person or persons entitled to thereto.
REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

may, on petition and after due notice and hearing, Setting forth the facts, and praying that the estate of
order such sale or encumbrance to be made, and the the deceased be declared escheated.
re-investment and application of the proceeds
thereof in such manner as will best effect the objects Real parties in interest in escheat proceedings
of the trust. Pg.
In all actions for reversion to the government the 135
The petition, notice, hearing, order of sale or lands of the public domain and improvements
encumbrance, and record of proceedings, shall thereon, the Republic of the Philippines is the real
conform as nearly as may be to the provisions party in interest. The action shall be instituted by the
concerning the sale or imcumbrance by guardians of Solicitor General or the officer acting in his stead in
the property of minors or other wards. Sec. 9, Rule behalf o the Republic of the Philippines. Luis B.
98. Manese s Sps. Velasco, GR 164024, Jan 29, 2009

4.10. ESCHEAT (Rule 91) Instance when the escheat proceeding is proper
even if the decedent died testate
Escheat it I a proceeding whereby the real and
personal property of a deceased person become the Even if the decedent died testate but his will was not
property of the State upon his death without leaving allowed to probate, it is as if he died intestate. In such
a will or legal heirs. a case, he has no known heirs and there are no
persons entitled to his property, the same can still be
It is an ordinary action but a special proceeding, escheated.
commenced by petition and not by complaint.
Municipal Council of San Pedro, Laguna vs Colegio de The venue is the place where the deceased person
San Jose, 65 Phil 318 last resided.

4.10.1. When to file Order for hearing.

When escheat proper- If the petition is sufficient in form and substance, the
court, by an order reciting the purpose of the petition,
1. When a person dies intestate, seized of real
property in the Philippine a. shall fix a date and place for the hearing
2. Leaving no heir or person by law entitled to thereof, which date shall be not more than
the same Sec. 1 Rule 90 six (6) months after the entry of the order,
and
b. shall direct that a copy of the order be
Who will file-
published before the hearing at least once a
Solicitor General or his representative in behalf of the week for six (6) successive weeks in some
Republic of the Philippines newspaper of general circulation published
in the province, as the court shall be deem
Venue- best. Sec. 2, Rule 90

File a petition in the Court of First Instance of the Hearing and judgment. When the court order
province where the deceased last resided or in which hearing for escheat-
he had estate, if he resided out of the Philippines.
Upon satisfactory proof in open court on the date
4.10.2. Requisites for filing of petition fixed in the order that such order has been published
as directed and that:
REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

a. the person died intestate, said time shall be forever barred. Sec. 4,
b. seized of real or personal property in the Rule 90.
Philippines,
c. leaving no heir or person entitled to the Can the trial court convert an escheat proceeding
same, and into an ordinary special proceeding? Pg.
d. no sufficient cause being shown to the 136
contrary, No. The two actions are entirely different form each
other and the requirements in vesting jurisdiction are
The court shall adjudge that the estate of the likewise different. In special proceedings, publication
deceased in the Philippines, after the is once a week for three consecutive weeks while in
payment of just debts and charges, shall escheat, once a week for fix weeks.
escheat; and shall, pursuant to law, assign
the personal estate to the municipality or Other actions for escheat. Rule 90 Sec. 5
city where he last resided in the Philippines,
and the real estate to the municipalities or Until otherwise provided by law, actions reversion or
cities, respectively, in which the same is escheat of properties alienated in violation of the
situated. Constitution or of any statute shall be governed by
this rule, except that the action shall be instituted in
the province where the land lies in whole or in part.
If the deceased never resided in the Philippines, the
Sec. 5, Rule 90
whole estate may be assigned to the respective
municipalities or cities where the same is located. The
4.11. GUARDIANSHIP
estate shall be for the benefit of public schools, and
public charitable institutions and centers in said
Guardianship of incompetents who are not minors
municipalities or cities.
Rules 92-97 of the Rules of court limit its application
The court, at the instance of an interested party, or
only to guardianship of incompetents who are not
on its own motion, may order the establishment of a
minors pursuant to AM 03-02-05 SC.
permanent trust, so that the only income from the
property shall be used. Sec. 3, Rule 90. Guardianship of minors

4.10.3 Remedy of respondent against petition; AM 03-02-05-SC governs the rule in guardianship of
period for filing a claim minors. Section 27 of the circular provides:

When and by whom claim to estate filed. Effect of the rule the rule amends Rule 92-97
inclusive of the Rules of Court on guardianship of
If a devisee, legatee, heir, widow, widower, or other minors. Guardianship of incompetents who are not
person entitled to such estate appears and files a minors shall continue to be under the jurisdiction of
claim thereto with the court within five (5) years from regular courts governed by the rules.
the date of such judgment,
Guardianship it is a trust relation of the most sacred
a. Such person shall have possession of and character, in which one person, called a guardian acts
title to the same, or for another called ward whom the law regards as
b. If sold, the municipality or city shall be incapable or managing his own affairs.
accountable to him for the proceeds after
deducting reasonable charges for the care of Where minors are involved, the State acts as parens
the estate; but a claim not made within the partriae.
REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

Guardian a person in whom the law has entrusted 4. Manage the estate of the ward frugally and
the custody and control of the person or estate or apply the proceeds to maintenance of the
both of an infant, insane or other person incapable of ward, Sec. 4
managing his own affairs. 5. Render verified inventory within 3 months
after his appointment and annually Pg.
Classification and kinds of guardians : thereafter upon application of interested 137
person, Sec. 7
a. According to scope of powers 6. Must present his account to the court for
settlement and allowance, Sec. 8
1. General one whose responsibility is over
the person of the ward or over his property
2. Limited over the property only
4.11.2. Conditions of the bond of the guardian
(Rule 94)
b. According to constitution-
Bond to be given before issuance of letters. Amount.
1. General guardian
Condition. Rule 94 Sec. 1
2. Legal guardian person who, without the
need of judicial appointment, is designated
Before a guardian appointed enters upon the
as such y provision of law as in the case of
execution of his trust, or letters of guardianship issue,
parents over the persons of their minor
he shall give a bond, in such sum as the court directs,
children.
conditioned as follows:
3. Guardian ad litem any competent person
appointed by the court to prosecute or a) To make and return to the court, within
defend minor, insane or person declared to three (3) months, a true and complete
be incompetent, in action in court. inventory of all the estate, real and
personal, of his ward which shall come to his
Jurisdiction over Guardianship Proceedings possession or knowledge of any other
person for him;
In guardianship proceedings involving incompetents b) To faithfully execute the duties of his trust,
who are not minors, the RTC where he resides have to manage and dispose of the estate
the jurisdiction in accordance to BP 129 as amended. according to these rules for the best
interests of the ward, and to provide for the
In guardianship of minors, it is the Family Court proper care, custody, and education of the
where the minor resides. ward;
c) To render a true and just account of all the
4.11.1. General powers and duties of guardians estate of the ward in his hands, and of all
(Rule 96) proceeds or interest derived therefrom, and
of the management and disposition of the
Summary of general powers and duties of guardians:
same, at the time designated by these rules
1. Have the care and custody of the person of and such other times as the courts directs,
the ward, and the management of hi estate, and at the expiration of his trust to settle his
or management of estate only, as the case accounts with the court and deliver and pay
may be, Sec. 1 over all the estate, effects, and moneys
2. Pay the debts of the ward, Sec. 2 remaining in his hands, or due from him on
3. Settle accounts, collect debts and appear in such settlement, to the person lawfully
actions for ward, Sec. 4 entitled thereto;
REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

d) To perform all orders of the court by him to 4. The probable value and character of his
be performed. estate;
5. The name of the person for whom letters of
guardianship.
4.11.3. Rule on guardianship over incompetent Pg.
who are not minor, Rule on guardianship over The petition shall be verified; but no defect in the 138
minor (Rule 93, AM 03-02-05-SC) petition or verification shall render void the issuance
of letters of guardianship. Sec. 2, Rule 93.
With respect to minor, the following may petition:
Contents for petition for guardianship over a minor:
1. Any relative
2. Other person on behalf of the minor 1. Jurisdictional facts
3. The minor himself if 14 years of age or over 2. Name, age and residence of prospective
4. The Secretary of Social Welfare and by the ward
Secretary of Health in case of an insane 3. The ground rendering the appointment
minor who needs to be hospitalized, Sec. 2 necessary or convenient
SC AM 03-02-05 4. The death of the parents of the minor or the
termination, deprivation or suspension of
parental authority
With respect to incompetent other than a minor, the 5. The remarriage of the minors surviving
following persons may petition: parent
6. The names, ages and residences of relative
1. Any relative
within the fourth civil degree of minor and of
2. Friend
persons having him in their custody;
3. Other person on behalf of the resident
7. The probable value, character and location
incompetent who has no parents or lawful
of the property of the minor; and
guardian
8. The name age and residence of person
4. Director of Health in favor of an insane who
whom letters of guardianship are prayed.
should be hospitalized or in favor of an
isolated leper
5. Any one interested in the estate of non-
Court to set time for hearing. Notice thereof.
resident incompetent.
When a petition for the appointment of a general
Contents of petition. guardian is filed,

A petition for the appointment of a general guardian a. the court shall fix a time and place for
must show, so far as known to the petitioner hearing the same, and
(Incompetent who are not minors): b. shall cause reasonable notice thereof to be
given to the persons mentioned in the
1. The jurisdiction facts; petition residing in the province, including
2. The minority or incompetency rendering the the minor if above 14 years of age or the
appointment necessary or convenient; incompetent himself, and
3. The names, ages, and residence of the c. may direct other general or special notice
relatives of the minor or incompetent, and of thereof to be given. Sec. 3, Rule 93.
the person having him in their care;
REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

Notice to a minor who is above 14 years old is


jurisdictional Publication of petition The trial custody shall
is necessary be made mandatory in
The non-compliance with the required notice as the country of the
Petition is allowed to be adopter
provided under Sec. 3 of the Rule 93 of the Revised Pg.
accompanied with
Rules of Court renders the guardianship proceeding 139
prayers of change of No requirement for
null and void. Nery et al, vs Lorenzo, L 23096, Apr 27 name, rectification of publication
1972 simulated birth or
declaration that the There is no such feature
Opposition to petition. Rule 93 Sec. 4 child is foundling,
abandoned or
Any interested person may, by filing a written neglected child.
opposition, contest the petition on the ground of

1. majority of the alleged minor,


2. competency of the alleged incompetent, or 4.12.2. Domestic Adoption Act
3. insuitability of the person for whom letters
are prayed, Who May Adopt.

The following may adopt:


And may pray that the petition be dismissed,
or that letters of guardianship issue to
(a) Any Filipino citizen of legal age, in possession of
himself, or to any suitable person named in
full civil capacity and legal rights, of good moral
the opposition.
character, has not been convicted of any crime
involving moral turpitude, emotionally and
psychologically capable of caring for children, at least
4.12. ADOPTION (Rule 99, Domestic
sixteen (16) years older than the adoptee, and who is
Adoption Act, Inter-Country Adoption) in a position to support and care for his/her children
in keeping with the means of the family. The
4.12.1. Distinguish domestic adoption from inter-
requirement of sixteen (16) year difference between
country adoption
the age of the adopter and adoptee may be waived
when the adopter is the biological parent of the
Domestic adoption Inter-country adoption adoptee, or is the spouse of the adoptee's parent;

(b) Any alien possessing the same qualifications as


Jurisdiction is under Family Court having above stated for Filipino nationals: Provided, That
Family Court where the jurisdiction over the his/her country has diplomatic relations with the
adopter resides place where the child Republic of the Philippines, that he/she has been
resides or may be living in the Philippines for at least three (3)
Application is made found. It may be filed continuous years prior to the filing of the application
only by filing a petition directly with the Inter-
for adoption and maintains such residence until the
with the Family Court in Country Adoption
the Philippines Board adoption decree is entered, that he/she has been
certified by his/her diplomatic or consular office or
Trial custody shall be Application may be any appropriate government agency that he/she has
made in the Philippines through the agency the legal capacity to adopt in his/her country, and
for six months located in the foreign that his/her government allows the adoptee to enter
country
REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

his/her country as his/her adopted Who May Be Adopted.


son/daughter: Provided, Further, That the
requirements on residency and certification of the
alien's qualification to adopt in his/her country may
be waived for the following: The following may be adopted: Pg.
140
(i) a former Filipino citizen who seeks to adopt a (a) Any person below eighteen (18) years of age who
relative within the fourth (4th) degree of has been administratively or judicially declared
consanguinity or affinity; or available for adoption;

(ii) one who seeks to adopt the legitimate (b) The legitimate son/daughter of one spouse by the
son/daughter of his/her Filipino spouse; or other spouse;

(iii) one who is married to a Filipino citizen and seeks (c) An illegitimate son/daughter by a qualified
to adopt jointly with his/her spouse a relative within adopter to improve his/her status to that of
the fourth (4th) degree of consanguinity or affinity of legitimacy;
the Filipino spouse; or
(d) A person of legal age if, prior to the adoption, said
(c) The guardian with respect to the ward after the person has been consistently considered and treated
termination of the guardianship and clearance of by the adopter(s) as his/her own child since minority;
his/her financial accountabilities.
(e) A child whose adoption has been previously
General rule: Husband and wife shall jointly adopt, rescinded; or

Except: (f) A child whose biological or adoptive parent(s) has


died: Provided, That no proceedings shall be initiated
a. if one spouse seeks to adopt the within six (6) months from the time of death of said
legitimate son/daughter of the other; or parent(s).
b. if one spouse seeks to adopt his/her
own illegitimate son/daughter: Whose Consent is Necessary to the Adoption.
Provided, However, that the other
spouse has signified his/her consent After being properly counseled and informed of
thereto; or his/her right to give or withhold his/her approval of
c. if the spouses are legally separated from the adoption, the written consent of the following to
each other. the adoption is hereby required:

In case husband and wife jointly adopt, or one spouse (a) The adoptee, if ten (10) years of age or over;
adopts the illegitimate son/daughter of the other,
joint parental authority shall be exercised by the (b) The biological parent(s) of the child, if known, or
spouses. the legal guardian, or the proper government
instrumentality which has legal custody of the child;

(c) The legitimate and adopted sons/daughters, ten


(10) years of age or over, of the adopter(s) and
adoptee, if any;
REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

(d) The illegitimate sons/daughters, ten (10) years of c) Effects of rescission of adoption
age or over, of the adopter if living with said adopter
and the latter's spouse, if any; and If the petition is granted, the parental authority of the
adoptee's biological parent(s), if known, or the legal
(e) The spouse, if any, of the person adopting or to be custody of the Department shall be restored if the
Pg.
adopted. adoptee is still a minor or incapacitated. The 141
reciprocal rights and obligations of the adopter(s) and
the adoptee to each other shall be extinguished.
a) Effects of adoption
The court shall order the Civil Registrar to cancel the
1. Transfer of parental authority except in cases
amended certificate of birth of the adoptee and
where the biological parent is the spouse of the
restore his/her original birth certificate.
adopter, the parental authority of the biological
parents shall terminate and the same shall be vested Succession rights shall revert to its status prior to
in the adopters adoption, but only as of the date of judgment of
judicial rescission. Vested rights acquired prior to
2. Legitimacy the adoptee shall be considered the
judicial rescission shall be respected.
legitimate son/daughter of the adopter(s) for all
intents and purposes and as such is entitled to all the
All the foregoing effects of rescission of adoption shall
rights and obligations provided by law to legitimate be without prejudice to the penalties imposable
sons/daughters born to them without discrimination under the Penal Code if the criminal acts are properly
of any kind. proven. Sec. 20, RA. 8552

3. Successional rights
4.12.3. Inter-country adoption
In legal and intestate succession, the adopter(s) and
a) When allowed
the adoptee shall have reciprocal rights of succession
without distinction from legitimate filiation
It is allowed when all the requirements and standards
set forth under R.A. 8043 are complied with.
b) Instances when adoption may be rescinded
Who May be Adopted
A minor or other incapacitated person may, through
a guardian or guardian ad litem, petition for the
rescission or revocation of his or her adoption for the Only a legally free child may be the subject of inter-
same causes that authorize the deprivation of country adoption. In order that such child may be
parental authority. considered for placement. Sec. 8. RA 8043.

The adopter may, likewise, petition the court for the


Who May Adopt.
rescission of revocation of the adoption in any of
these cases: An alien or a Filipino citizen permanently residing
abroad may file an application for inter-country
a) If the adopted person has attempted against
adoption of a Filipino child if he/she:
the file of the adopter
b) When the adopted minor has abandoned
a. is at least twenty-seven (27) years of age and
the home of the adopter for more than three
at least sixteen (16) years older than the
(3) years;
child to be adopted, at the time of
When by other acts the adopted person has
application unless the adopter is the parent
repudiated the adoption
REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

by nature of the child to be adopted or the c) Best interest of the minor standard
spouse of such parent:
b. if married, his/her spouse must jointly file for Best interests of the child means the totality of the
the adoption; circumstances and conditions as are most congenial
c. has the capacity to act and assume all rights to the survival, protection, and feelings of security of
Pg.
and responsibilities of parental authority the child and most encouraging to his physical, 142
psychological, and emotional development.
under his national laws, and has undergone
the appropriate counseling from an
accredited counselor in his/her country;
d. has not been convicted of a crime involving 4.13. WRIT OF HABEAS CORPUS (Rule 102)
moral turpitude;
e. is eligible to adopt under his/her national Habeas corpus A writ directed to the person
law; detaining another, commanding him to produce the
f. is in a position to provide the proper care body of the prisoner at a designated time and place,
and support and to give the necessary moral with the day and cause of his capture and detention,
values and example to all his children, to do, submit to, and receive whatsoever to the court
including the child to be adopted; or judge awarding the writ shall consider in that
g. ) agrees to uphold the basic rights of the behalf.
child as embodied under Philippine laws, the
U.N. Convention on the Rights of the Child, Scope of Habeas Corpus
and to abide by the rules and regulations Except as otherwise expressly provided by law, the
issued to implement the provisions of this writ of habeas corpus shall extend to all cases of
Act; illegal confinement or detention by which any person
h. comes from a country with whom the is deprived of his liberty, or by which the rightful
Philippines has diplomatic relations and custody of any person is withheld from the person
whose government maintains a similarly entitled thereto. Sec. 1, Rule 102
authorized and accredited agency and that
adoption is allowed under his/her national 4.13.1. Contents of the petition
laws; and
i. possesses all the qualifications and none of Application for the writ shall be by petition signed and
the disqualifications provided herein and in verified either by the party for whose relief it is
other applicable Philippine laws. intended, or by some person on his behalf, and shall
set forth:

b) Functions of the RTC a) That the person in whose behalf the


application is made is imprisoned or
An application to adopt a Filipino child shall be filed restrained on his liberty;
either with the Philippine Regional Trial Court having b) The officer or name of the person by whom
jurisdiction over the child, or with the Board, through
he is so imprisoned or restrained; or, if both
an intermediate agency, whether governmental or an
are unknown or uncertain, such officer or
authorized and accredited agency, in the country of
person may be described by an assumed
the prospective adoptive parents, which application
appellation, and the person who is served
shall be in accordance with the requirements as set
forth in the implementing rules and regulations to be with the writ shall be deemed the person
promulgated by the Board. Sec. 10, RA. 8043 intended;
c) The place where he is so imprisoned or
restrained, if known;
REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

d) A copy of the commitment or cause of 4.13.3. Distinguish peremptory writ from


detention of such person, if it can be preliminary citation
procured without impairing the efficiency of
the remedy; or, if the imprisonment or
Preliminary citation Peremptory writ
restraint is without any legal authority, such Pg.
fact shall appear. Sec. 3, Rule 102 143
Where a person is This is issued when the
detained under cause of the detention
governmental authority appears to be patently
4.13.2. Contents of the return and illegality of his ilelga, and the non-
When the person to be produced is imprisoned or detention is not patent compliance wherewith
from the petition for is punishable. Lee yick
restrained by an officer, the person who makes the
the writ, the court may Hon vs Insular Collector
return shall state therein, and in other cases the issue a citation to the of Customs
person in whose custody the prisoner is found shall government officer
state, in writing to the court or judge before whom having the person in his
the writ is returnable, plainly and unequivocably: cutody to show cause
why the writ of habeas
a) Whether he has or has not the party in his corpus should not
custody or power, or under restraint; issue.
b) If he has the party in his custody or power,
or under restraint, the authority and the true
and whole cause thereof, set forth at large,
4.13.4. When not proper/applicable
with a copy of the writ, order execution, or
other process, if any, upon which the party is (a) For asserting or vindicating denial of right to bail;
held; Galvez vs. CA, 237 SCRA 685
c) If the party is in his custody or power or is
restrained by him, and is not produced, (b) For correcting errors in appreciation of facts or
particularly the nature and gravity of the appreciation of law where the trial court had no
sickness or infirmity of such party by reason jurisdiction over the cause, over the person of the
of which he cannot, without danger, be accused, and to impose the penalty provided for by
bought before the court or judge; law, the mistake committed by the trial court, in the
d) If he has had the party in his custody or appreciation of the facts and/or in the appreciation of
the law cannot be corrected by habeas corpus Sotto
power, or under restraint, and has
vs. Director of Prisons, May 30, 1962
transferred such custody or restraint to
another, particularly to whom, at what time,
(c) Once a person detained is duly charged in court,
for what cause, and by what authority such he may no longer file a petition for habeas corpus. His
transfer was made. Sec. 10, Rule 102. remedy would be to quash the information or
warrant. Rodriguez vs. Judge Bonifacio, Nov. 26,
2000

4.13.5. When writ disallowed/discharged


If it appears that the person alleged to be restrained
of his liberty is in the custody of an officer under
process issued by a court or judge or by virtue of a
judgment or order of a court of record, and that the
REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

court or judge had jurisdiction to issue the process,


render the judgment, or make the order, the writ shall Filed by a Filed by General rule: By
not be allowed. party for aggrieved aggrieved party
whose relief party, or by
If the jurisdiction appears after the writ is allowed, the it is intended any Except: in
or by some qualified extrajudicial Pg.
person shall not be discharged by reason of any 144
other person person or killings and
informality or defect in the process, judgment, or
in his behalf entity. enforced
order. Not shall anything in this rule be held to disappearances
authorize the discharge of a person charged with or
convicted of an offense in the Philippines, or of a
person suffering imprisonment under lawful
judgment. 4.14. WRIT OF AMPARO (A.M. No. 07-9-12-
SC)
4.13.6. Distinguish from writ of amparo and
habeas data It is a remedy available to any person whose right to
life, liberty and security has been violated or is
threatened with violations of unlawful act or omission
Habeas Amparo Habeas Data of public official or employee, or of a private
Corpus
individual or entity.
Rule 102 AM. 07-9-SC AM No. 08-1-16-
SC
4.14.1. Coverage

Writ directed Remedy The writ of habeas The writ covers extralegal killings and enforced
to the person available data is a remedy disappearances and threats thereof.
detaining whose right available to any
another, to life, person whose 4.14.2. Distinguish from habeas corpus and
commanding liberty and right to privacy in habeas data
him to security has life, liberty or
produce the been security is violated See table in 4.13.6.
body of the violated or or threatened by
prisoner at threatened an unlawful act or 4.14.3. Differences between amparo and search
designated with omission of a
time or day. violation by public official or
warrant
an unlawful employee, or of a
act or private individual Writ of Amparo Search Warrant
omission of or entity engaged
a public in the gathering,
official or collecting or
Issuance of the Writ. Requisites for issuing
employee, storing of data or
search warrant
or of a information
Upon the filing of the
private regarding the petition, the court, A search warrant shall
individual or person, family, justice or judge shall not issue except upon
entity. home and
immediately order the probable cause in
correspondence of issuance of the writ if connection with one (1)
the aggrieved on its face it ought to specific offense to be
party.
issue. The clerk of court determined personally
shall issue the writ by the judge after
under the seal of the examination under oath
court; or in case of or affirmation of the
REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

urgent necessity, the complainant and the omission, or if the name is unknown or
justice or the judge may witness he may uncertain, the respondent may be described
issue the writ in his or produce, and by an assumed appellation.
her own hand, and may particularly describing
3. The right to life, liberty and security of the
deputize any officer or the place to be
aggrieved party violated or threatened with Pg.
person to serve it. The searched and the things
writ shall also set the to be seized, which may violation by an unlawful act or omission of 145
date and time for be anywhere in the the respondent, and how such threat or
summary hearing of the Philippines. violation committed with the attendant
petition which shall not circumstances detailed in supporting
be later than seven (7) affidavits
days from the date of
4. The investigation conducted, if any,
issuance.
specifying the names, personal
circumstances, and address of the
investigating authority or individuals, as well
4.14.4. Who may file as the manner and conduct of the
investigation, together with any report.
The petition may be filed by the aggrieved party or by
5. The actions and recourses taken by the
any qualified person or entity in the following order:
petitioner to determine the fate or
1. Any member of immediate family, namely: whereabouts of the aggrieved party and the
the spouse, children and parents of the identity of the person responsible for the
aggrieved party; threat, act or omission; and
2. Any ascendant, descendant or collateral 6. The relief prayed for the petition may
relative of the aggrieved party within the include a general prayer for other just and
fourth civil degree of consanguinity or equitable reliefs
affinity, in default of those mentioned in the
preceding paragraph, or
4.14.5. Contents of return
3. Any concerned citizen, organization,
association or institution, if there is no After the service of the writ, the respondent must:
known member of immediate family or
relative of aggrieved party. Within 72 hours after service of the writ, the
respondent shall file a written return together with
The filing of a petition by aggrieved party suspends supporting affidavits which shall among other things,
the right of all other authorized parties to file petition. contain the following:
Likewise, the filing of the petition by an authorized
1. The lawful defenses to show that the
party on behalf of the aggrieved party suspends the
respondent did not violate or threaten with
right of all others, observing the order establishing
violation the right to life, liberty and security
therein.
of the aggrieved party, through any act or
What the petition for Writ of Amparo must contain? omission.
2. The steps or actions taken by the
The petition shall be signed and verified and shall respondent to determine the fate or
allege the following: whereabouts of the aggrieved party and the
person or persons responsible for the
1. The personal circumstances of the petitioner
threat, act or omission.
2. Name and personal circumstances of the
respondent responsible for the threat, act or
REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

3. All the relevant information in the 4.14.7. Omnibus waiver rule


possession of the respondent pertaining to
the threat, act or omission against the All defenses shall be raised in the return, otherwise,
aggrieved party; and they shall be deemed waived. Sec. 10 of Rules on Writ
4. If the respondent is a public official or of Amparo.
Pg.
employee, the return shall further state the 146
actions that have been or will be taken:
4.14.8. Procedure for hearing
a. To recover the identity of the Nature of the hearing on the petition of the writ
aggrieved party
b. To recover and preserve the It shall be summary. However, the court, justice, or
evidence related to the death or judge may call for a preliminary conference to
disappearance of the person simplify issues and determine the possibility of
identified in the petition which may obtaining stipulations and admissions from the
aid in the prosecution of the person parties. The hearing be from day to day until
or persons responsible completed and given the same priority as habeas
c. To identify witnesses and obtain corpus.
statements from them concerning
the death or disappearances 4.14.9. Institution of separate action
d. To determine the cause, manner,
The Rule shall not preclude the filing of separate
location and time of the death or
criminal, civil or administrative actions.
disappearance as well as any
pattern or practice that may have
4.14.10. Effect of filing of a criminal action
brought about the death or
disappearance. When a criminal action has been commenced, no
e. To identify and apprehend the separate petition for the writ shall be filed. The reliefs
person or persons involved in the under the writ shall be available by motion in the
death or disappearance; and criminal case.
f. To bring the suspected offenders
before a competent court The procedure under this Rule shall govern the
disposition of the reliefs available under the writ of
The return shall also state other matters relevant to amparo.
the investigation, its resolution and prosecution of
4.14.11. Consolidation
cases.
The general denial of the allegations in the petition When a criminal action is filed subsequent to the filing
shall not be allowed of a petition for the writ, the latter shall be
consolidated with the criminal action.
4.14.6. Effects of failure to file return
When a criminal action and a separate civil action are
If the respondent fails to file a return, what will
filed subsequent to a petition for a writ of amparo,
happen to the proceeding?
the latter shall be consolidated with the criminal
The court, justice, or judge shall proceed to hear the action.
petition ex parte or even without the appearance of
After consolidation, the procedure under this Rule
the respondent.
shall continue to apply to the disposition of the reliefs
in the petition.
REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

4.14.12. Interim reliefs available to petitioner The respondent who is a public official or employee
and respondent must prove that extraordinary diligence as required
by applicable laws, rules, and regulations are
Interim reliefs available to the petitioner-
observed in the performance of duty.
Upon filing of the petition or at any time before final Pg.
Substantial evidence Quantum of evidence which a 147
judgment, the court, justice or judge may grant any of
reasonable mind might accept as adequate to
the following reliefs:
support a conclusion.
1. Temporary Protection Order
2. Inspection Order
4.15. WRIT OF HABEAS DATA (A.M. No. 08-
3. Production Order 1-16-SC)
4. Witness Protection Order
4.15.1. Scope of writ

These are provisional reliefs that the courts may grant The writ of habeas data is a remedy available to any
in order to, inter alia, protect the witnesses and the person whose right to privacy in life, liberty or
rights of the parties, and to preserve all relevant security is violated or threatened by an unlawful act
evidence. These provisional reliefs are intended to or omission of a public official or employee, or of a
private individual or entity engaged in the gathering,
assist the court before it arrives at a judicious
collecting or storing of data or information regarding
determine of amparo petition.
the person, family, home and correspondence of the
Are interim reliefs available to the respondent? aggrieved party.

Yes, but only the interim reliefs of inspection order 4.15.2. Availability of writ
and production order.
Any aggrieved party may file a petition for the writ
These interim reliefs may be issued only: of habeas data. However, in cases of extralegal
killings and enforced disappearances, the petition
1. After a verified motion is filed by the
may be filed by:
respondent,
2. Supported by affidavits or testimonies of
(a) Any member of the immediate family of the
witnesses having personal knowledge or
aggrieved party, namely: the spouse, children and
defenses of the respondent,
parents; or
3. After due hearing.
(b) Any ascendant, descendant or collateral relative of
the aggrieved party within the fourth civil degree of
4.14.13. Quantum of proof in application for
consanguinity or affinity, in default of those
issuance of writ of amparo
mentioned in the preceding paragraph; or
Parties shall establish their claims by substantial
evidence. Where to File.

The respondent who is a private individual or entity The petition may be filed with the Regional Trial Court
must prove that ordinary diligence as required by where the petitioner or respondent resides, or that
applicable laws, rules and regulations were observed which has jurisdiction over the place where the data
in the performance of the duty. or information is gathered, collected or stored, at the
option of the petitioner.
REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

The petition may also be filed with the Supreme Court When issued by the Court of Appeals or the
or the Court of Appeals or the Sandiganbayan when Sandiganbayan or any of its justices, it may be
the action concerns public data files of government returnable before such court or any justice thereof, or
offices. to any Regional Trial Court of the place where the
petitioner or respondent resides, or that which has Pg.
4.15.3. Distinguished from habeas corpus and jurisdiction over the place where the data or 148
amparo information is gathered, collected or stored.

See table in 4.13.6. When issued by the Supreme Court or any of its
justices, it may be returnable before such Court or
4.15.4. Contents of the petition any justice thereof, or before the Court of Appeals or
the Sandiganbayan or any of its justices, or to any
A verified written petition for a writ of habeas Regional Trial Court of the place where the petitioner
data should contain: or respondent resides, or that which has jurisdiction
over the place where the data or information is
(a) The personal circumstances of the petitioner and gathered, collected or stored.
the respondent;
The writ of habeas data shall be enforceable
(b) The manner the right to privacy is violated or anywhere in the Philippines.
threatened and how it affects the right to life, liberty
or security of the aggrieved party; 4.15.5. Contents of return

(c) The actions and recourses taken by the petitioner The respondent shall file a verified written return
to secure the data or information; together with supporting affidavits within five (5)
working days from service of the writ, which period
(d) The location of the files, registers or databases, may be reasonably extended by the Court for
the government office, and the person in charge, in justifiable reasons. The return shall, among other
possession or in control of the data or information, if things, contain the following:
known;
(a) The lawful defenses such as national security,
(e) The reliefs prayed for, which may include the state secrets, privileged communications,
updating, rectification, suppression or destruction of confidentiality of the source of information of media
the database or information or files kept by the and others;
respondent.
(b) In case of respondent in charge, in possession or
In case of threats, the relief may include a prayer for in control of the data or information subject of the
an order enjoining the act complained of; and petition;

(f) Such other relevant reliefs as are just and (i) a disclosure of the data or information about the
equitable. petitioner, the nature of such data or information,
and the purpose for its collection;
Where Returnable; Enforceable.
(ii) the steps or actions taken by the respondent to
When the writ is issued by a Regional Trial Court or ensure the security and confidentiality of the data or
any judge thereof, it shall be returnable before such information; and,
court or judge.
REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

(iii) the currency and accuracy of the data or The filing of a petition for the writ of habeas data shall
information held; and, not preclude the filing of separate criminal, civil or
administrative actions.
(c) Other allegations relevant to the resolution of the
proceeding. Pg.
149
A general denial of the allegations in the petition shall
4.16. CHANGE OF NAME (Rule 103)
not be allowed.
Change of name is a special proceeding to establish
the status of a person involving his relation with
4.15.6. Instances when petition may be heard in others, that is, his legal position in, or with regard to,
chambers the rest of the community.

A hearing in chambers may be conducted where the 4.16.1. Differences under Rule 103, R.A. No. 9048
respondent invokes the defense that the release of and Rule 108.
the data or information in question shall compromise
national security or state secrets, or when the data or
information cannot be divulged to the public due to Rule 103 Rule 108 R.A. 9048
its nature or privileged character.
Change of Cancellation/C Clerical Error
4.15.7. Consolidation
name orrection of Act
Entries in Civil
When a criminal action is filed subsequent to the filing Registries
of a petition for the writ, the latter shall be
consolidated with the criminal action. Change of full Change or Change of first
name corrections in name and
When a criminal action and a separate civil action are (substantial the civil nickname and
filed subsequent to a petition for a writ of habeas corrections) entries, civil entries,
data, the petition shall be consolidated with the (substantial (only
criminal action. corretions) typographical
or clerical
After consolidation, the procedure under this Rule erros)
shall continue to govern the disposition of the reliefs
in the petition. Venue is RTC RTC or city or Local civil
of the province province registry office
4.15.8. Effect of filing of a criminal action in which the where of the city of
petitioner corresponding municipality
resides for 3 civil registry is where the
When a criminal action has been commenced, no
years prior to located record is being
separate petition for the writ shall be filed. The relief
the filing or in sought to be
under the writ shall be available to an aggrieved party the City of correct or
by motion in the criminal case. Manila, to change kept
Juvenile and
The procedure under this Rule shall govern the Domestic Local civil
disposition of the reliefs available under the writ of Relations registrar
habeas data. Court where the
interested
4.15.9. Institution of separate action party
presently
REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

residing or 4.17.2. Who may file; when to file


domiciled
After the lapse of two (2) years from his disapperance
Philippine and without any news about the absentee or since
consulates the receipt of the last news, or of five (5) years in case
Pg.
the absentee has left a person in charge of the 150
Judicial Summary Administrative
administration of his property, the declaration of his
proceedings proceeding. proceedings
absence and appointment of a trustee or
Can be
converted to administrative may be applied for by any of the
adversarial if following:
there are
substantial a) The spouse present;
changes and
affect status of b) The heirs instituted in a will, who may present an
an individual authentic copy of the same.

File a signed Filed a verified File an affidavit c) The relatives who would succeed by the law of
and verified petition intestacy; and
petition
d) Those who have over the property of the absentee
some right subordinated to the condition of his death.

4.16.2. Grounds for change of name Opposition

The grounds for change of name under Rule 103 are Anyone appearing to contest the petition shall state
the following: in writing his grounds therefor, and serve a copy
thereof on the petitioner and other interested parties
a. The name is ridiculous, tainted with dishonor
on or before the date designated for the hearing. Sec.
and extremely difficult to writ or pronounce 5, Rule 107
b. Consequences of change of status
c. Necessity to avoid confusion Termination of administration.
d. Having continuously used and have been
known since childhood by Filipino name, The trusteeship or administration of the property of
unaware of her alien parentage the absentee shall cease upon order of the court in
e. A sincere desire to adopt a Filipino name to any of the following cases:
erase signs of former alienage all in good
a) When the absentee appears personally or by
faith and without prejudicing anybody.
means of an agent;

b) When the death of the absentee is proved and his


4.17. ABSENTEES (Rule 107) testate or intestate heirs appear;

4.17.1. Purpose of the rule c) When a third person appears, showing by a proper
document that he has acquired the absentee's
To allow the court to appoint an administrator or property by purchase or other title.
representative to take care of the property of the
person who is sought to be judicially declared absent. In these cases the trustee or administrator shall cease
in the performance of his office, and the property
REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

shall be placed at the disposal of whose may have a (o) changes of name.
right thereto. Sec. 8, Rule 107
Notice and publication
4.18 CANCELLATION OR CORRECTION OF Upon the filing of the petition, the court shall, by an
ENTRIES IN THE CIVIL REGISTRY (Rule 108) order, fix the time and place for the hearing of the Pg.
same, and cause reasonable notice thereof to be 151
4.18.1. Entries subject to cancellation or given to the persons named in the petition. The
correction under Rule 108, in relation to R.A. court shall also cause the order to be published once
No. 9048 a week for three (3) consecutive weeks in a
Who may file the petition? newspaper of general circulation in the province.

Any person interested in any act, event, order or Order


decree concerning the civil status of persons which
After hearing, the court may either dismiss the
has been recorded in the civil register, may file a
petition or issue an order granting the cancellation
verified petition for the cancellation or correction of
or correction prayed for. In either case, a certified
any entry relating thereto, with the Court of First
copy of the judgment shall be served upon the civil
Instance of the province where the corresponding
registrar concerned who shall annotated the same in
civil registry is located.
his record.
Grounds:

Upon good and valid grounds, the following entries


in the civil register may be cancelled or corrected: 4.19. APPEALS IN SPECIAL PROCEEDINGS
(Rule 109)
(a) births:
4.19.1. Judgments and orders for which appeal
(b) marriage;
may be taken
(c) deaths;
Who may appeal-
(d) legal separations;
An interested person may appeal in special
(e) judgments of annulments of marriage;
proceedings from an order or judgment rendered by
(f) judgments declaring marriages void from a Court of First Instance or a Juvenile and Domestic
the beginning; Relations Court,

(g) legitimations; 4.19.2. When to appeal

(h) adoptions; In cases of:


(i) acknowledgments of natural children; a) Allows or disallows a will;
b) Determines who are the lawful heirs of a
(j) naturalization;
deceased person, or the distributive share of
(k) election, loss or recovery of citizenship; the estate to which such person is entitled;
c) Allows or disallows, in whole or in part, any
(l) civil interdiction;
claim against the estate of a deceased
(m) judicial determination of filiation; person, or any claim presented on behalf of
the estate in offset to a claim against it;
(n) voluntary emancipation of a minor; and
REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

d) Settles the account of an executor, the estate may not be affected by the controversy or
administrator, trustee or guardian; appeal be distributed among the heirs or legatees,
e) Constitutes, in proceedings relating to the upon compliance with the conditions set forth in Rule
settlement of the estate of a deceased 90 of this rules.
person, or the administration of a trustee or Pg.
guardian, a final determination in the lower 152
court of the rights of the party appealing,
except that no appeal shall be allowed from
the appointment of a special administrator;
and
f) Is the final order or judgment rendered in
the case, and affects the substantial rights of
the person appealing unless it be an order
granting or denying a motion for a new trial
or for reconsideration.

4.19.3. Modes of appeal

Ordinary appeal - The appeal to the CA in cases


decided by the RTC in the exercise of its original
jurisdiction shall be taken by filing a notice of appeal
with the court which rendered the judgment or final
order appealed from and serving a copy thereof upon
the adverse party. No record on appeal shall be
required except in special proceedings and other
cases of multiple or separate appeals where the law
or the Rules so require. In such cases, the record on
appeal shall be filed and served in like manner.

Petition for review The appeal to the CA in cases


decided by the RTC in the exercise of its appellate
jurisdiction shall be by petition for review in
accordance with Rule 42.

Petition for review on certiorari - In all cases where


only questions of law are raised or involved, the
appeal shall be to the SC by petition for review on
certiorari in accordance with Rule 45.

4.19.4. Rule on advance distribution

Advance distribution in special proceedings.

Notwithstanding a pending controversy or appeal in


proceedings to settle the estate of a decedent, the
court may, in its discretion and upon such terms as it
may deem proper and just, permit that such part of
REMEDIAL LAW REVIEWER Chapter V Criminal Procedure

Petitions for certiorari, prohibition and mandamus


V. CRIMINAL PROCEDURE against the CA and Sandiganbayan.

5.1. GENERAL MATTERS Concurrent jurisdiction


Pg.
Criminal Procedure - A proceeding whereby the state a) with CA: petitions for certiorari, 153
prosecutes a person for an act or omission punishable prohibition and mandamus against RTC;
by law.
b) with CA and RTC: petitions for certiorari,
Criminal Proceeding - proceedings before the trial prohibition and mandamus against lower
court from arraignment to rendition of judgment. courts;

Retroactive application of the rules c) with Sandiganbayan: petitions for


mandamus, prohibition, certiorari, habeas
The crime was committed before the effectivity of the corpus, injunction and ancillary writs in aid
Rules of Criminal Procedure; the rule should be of its appellate jurisdiction and over
applied retroactively as it is favor to the appellant. petitions of similar nature, including quo
warranto arising or that may arise in cases
5.1.1. Distinguish jurisdiction over subject filed or which may be filed.
matter from jurisdiction over person of the
accused Exclusive appellate jurisdiction

By Petition for Review on Certiorari


Jurisdiction over Jurisdiction over the
subject matter person of the accused 1) from the CA;

Refers to the authority Refers to the authority 2) from the Sandiganbayan;


of the court to hear and of the court, not over
determine a particular the subject matter of 3) from the RTC where only an error or
criminal case the litigation, but over question of law is involved.
the person charged.
From the RTC in cases commenced therein, except
5.1.2. Requisites for exercise of criminal those appealable to the SC or the Sandiganbayan.
jurisdiction
By Petition for Review:
Requisites:
From the RTC in cases appealed thereto from
a. Jurisdiction over the subject matter the lower courts and not appealable to the
b. Jurisdiction over the territory Sandiganbayan.
c. Jurisdiction over the person of the accused

5.1.3. Jurisdiction of criminal courts


Court of Appeals

Supreme Court
Original exclusive

Original exclusive
Actions for annulment of judgments of the RTC
REMEDIAL LAW REVIEWER Chapter V Criminal Procedure

Concurrent jurisdiction Regional Trial Court

a) with the SC: petitions for certiorari, Original exclusive


prohibition and mandamus against RTC;
a. All criminal cases which are not within the
exclusive jurisdiction of any court, tribunal or Pg.
b) with SC and RTC: petitions for certiorari, 154
prohibition and mandamus against lower body.
courts. b. Penalty provided by law exceeds 6 years
imprisonment and which are not within the
Exclusive appellate jurisdiction exclusive jurisdiction of any court, tribunal or
body.
a) from the RTC in all criminal cases involving c. Jurisdiction over the whole complex crimes.
offenses for which the penalty is reclusion d. Criminal cases where on ne or more of the
perpetua or life imprisonment, and those accused is below 18 years of age but not less
involving other offenses which, although not than 9 years of age, or one or more victim is
so punished, arose out of the same a minor at the time of the commission of the
occurrence or which may have been offense; ...
committed by the accused on the same e. Cases against minors cognizable under the
occasion; Dangerous Drugs Acts, as amended;
b) Automatic review where death penalty is f. Violation of RA 7610 (special protection of
imposed children against child abuse, exploitation
and discrimination act) as amended by RA
Sandiganbayan 7658
g. Cases of domestic violence against women
Original exclusive and children.
a. Violations of R.A. 3019, as amended, R.A.
1379, and bribery and corruption offenses Exclusive Appellate
under the Revised Penal Code, where one or
more of the accused are officials occupying All cases decided by lower court in their respective
territorial jurisdictions.
positions in the government, whether in a
permanent, acting or interim capacity, at the
Municipal Trial Court
time of the commission of the offense;
b. Other offenses or felonies whether simple or Exclusive Original
complexed with other crimes committed in
relation to their office by the public officials a. Violation of city or municipal ordinances
and employees mentioned in Sec. 4[a],1 PD committed within their respective territorial
1606, as amended by R.A. 7975; jurisdictions;
c. Criminal cases filed pursuant to and in b. All offenses punishable with imprisonment
connection with EO Nos. 1, 2, 14, and 14-A. of not more than 6 years irrespective of the
amount of fine, and in all cases of damage to
Exclusive appellate jurisdiction property through criminal negligence,
regardless of other penalties and the civil
From the RTC in cases under PD1606, as amended by liabilities arising therefrom; and
PD 1861, whether or not the cases were decided by c. All offenses committed by public officers and
them in the exercise of their original or appellate employees in relation to their office,
jurisdictions. including GOCC, and by private individuals
REMEDIAL LAW REVIEWER Chapter V Criminal Procedure

charged as co-principal, accomplices or 7. where the Court has no jurisdiction over the
accessories, punishable by not more than 6 offense;
years imprisonment.(except violation of RA 8. where it is a case of persecution rather than
no. 3019 (anti-graft and corrupt practices prosecution;
act);RA no. 1379 (act declaring forfeiture of 9. where the charges are manifestly false and Pg.
ill-gotten wealth of public officer and motivated by the lust for vengeance; and 155
employees) ARTS.210-212 of RPC (direct 10. when there is clearly no prima facie case
bribery, indirect bribery and qualified against the accused and a motion to quash
bribery) on that ground has been denied.

Under the 1991 rules on summary procedure: 5.2. PROSECUTION OF CRIMINAL ACTION
a. traffic violation; (RULE 110)
b. violation of the rental law;
c. violation of city or municipal ordinances; and 5.2.1. Criminal actions, how instituted
d. .all offenses where the penalty does not
exceed 6 months imprisonment and/or (a) For offenses where a preliminary investigation is
P1,000 fine, irrespective of other penalties required pursuant to section 1 of Rule 112, by filing
or civil liabilities arising therefrom, and in the complaint with the proper officer for the purpose
offenses involving damage to property of conducting the requisite preliminary investigation.
through criminal negligence where the
(b) For all other offenses, by filing the complaint or
impossible fine does not exceed P10,000.
information directly with the Municipal Trial Courts
and Municipal Circuit Trial Courts, or the complaint
5.1.4. When injunction may be issued to
with the office of the prosecutor. In Manila and other
restrain criminal prosecution chartered cities, the complaint shall be filed with the
office of the prosecutor unless otherwise provided in
As a general rule, the courts will not issue writs of
their charters. Sec. 1 Rule 110.
prohibition or injunction preliminary or final, to
enjoin or restrain criminal prosecution. The prescriptive period is tolled.

Exceptions: The institution of the criminal action shall interrupt


1. when the injunction is necessary to afford the running period of prescription of the offense
adequate protection to the constitutional charged unless otherwise provided in special laws.
rights of the accused;
2. when it is necessary for the orderly
5.2.2. Who may file them, crimes that cannot be
administration of justice or to avoid prosecuted de officio
oppression or multiplicity of actions;
The crimes of adultery and concubinage
3. when there is a prejudicial question which is
sub judice;
It shall not be prosecuted except upon a complaint
4. when the acts of the officer are without or in
filed by the offended spouse. The offended party
excess of authority;
cannot institute criminal prosecution without
5. where the prosecution is under an invalid
including the guilty parties, if both alive, nor, in any
law, ordinance or regulation;
case, if the offended party has consented to the
6. when double jeopardy is clearly apparent;
offense or pardoned the offenders.
REMEDIAL LAW REVIEWER Chapter V Criminal Procedure

The offenses of seduction, abduction and acts of 5.2.4. Control of prosecution


lasciviousness
All criminal actions either commenced by complaint
It shall not be prosecuted except upon a complaint or by information shall be prosecuted under the
filed by the offended party or her parents, direction and control of a public prosecutor. Pg.
grandparents or guardian, nor, in any case, if the 156
offender has been expressly pardoned by any of When a private prosecutor may be authorized to
them. If the offended party dies or becomes prosecute the case:
incapacitated before she can file the complaint, and
she has no known parents, grandparents or guardian, In case of heavy work schedule of the public
the State shall initiate the criminal action in her prosecutor or in the event of lack of public
behalf. prosecutors, the private prosecutor may be
authorized in writing by the Chief of the Prosecution
The offended party, even if a minor, has the right to Office or the Regional State Prosecutor to prosecute
initiate the prosecution of the offenses of seduction, the case subject to the approval of the court.
abduction and acts of lasciviousness independently of
her parents, grandparents, or guardian, unless she is Extent of the authority given to the private
incompetent or incapable of doing so. prosecutor when duly authorized to prosecute the
action
Where the offended party, who is a minor, fails to file
the complaint, her parents, grandparents, or guardian Once so authorized to prosecute the criminal action,
may file the same. The right to file the action granted the private prosecutor shall continue to prosecute the
to parents, grandparents or guardian shall be case up to end of the trial even in the absence of a
exclusive of all other persons and shall be exercised public prosecutor, unless the authority is revoked or
successively in the order herein provided, except as otherwise withdrawn. Sec. 5, Rule 110
stated in the preceding paragraph.
5.2.5. Sufficiency of complaint or information
Prosecution for defamation
Complaint shown written statement charging a
No criminal action for defamation which consists in person with an offense, subscribed by the offended
the imputation of the offenses mentioned above shall party, any peace officer, or other public officer
be brought except at the instance of and upon charged with enforcement of the law violated.
complaint filed by the offended party.
Information is an accusation in writing charging a
Prosecution of violation of special laws person with an offense subscribed by the prosecutor
and filed with court.
The prosecution for violation of special laws shall be
governed by the provisions thereof. In Cudia vs CA, it was held that an infirmity in the
information, such as lack of authority of the officer
5.2.3. Criminal actions, when enjoined signing it, cannot be cured by silence, or even by
express consent and therefore, defective.
See. 5.1.4.
A complaint or information is sufficient if it states:

1. The name of the accused;


2. The designation of the offense given by the
statute;
REMEDIAL LAW REVIEWER Chapter V Criminal Procedure

3. The acts or omissions complained of as the statute but in terms sufficient to enable a person
constituting the offense; of common understanding to know what offense is
4. The name of the offended party; being charged as well as its qualifying and aggravating
5. The approximate date of the commission of circumstances and for the court to pronounce
the offense; and judgment Pg.
6. The place where the offense was committed. 157
When an offense is committed by more than one 5.2.8. Duplicity of the offense; exception
person, all of them shall be included in the complaint
or information. Sec. 6, Rule 110. General rule: A complaint or information must charge
but one offense
How to state the name of the accused
Exception: except when the law prescribes a single
The complaint or information must state the name punishment for various offenses.
and surname of the accused or any appellation or
nickname by which he has been or is known. If his 5.2.9. Amendment or substitution of complaint
name cannot be ascertained, he must be described or information
under a fictitious name with a statement that his true
name is unknown. Amendment without leave of court

If the true name of the accused is thereafter disclosed A complaint or information may be amended, in form
by him or appears in some other manner to the court, or in substance, without leave of court, at any time
such true name shall be inserted in the complaint or before the accused enters his plea.
information and record
Amendment with leave of court
5.2.6. Designation of offense
After the plea and during the trial, a formal
The complaint or information shall state the amendment may only be made with leave of court
designation of the offense given by the statute, aver and when it can be done without causing prejudice to
the acts or omissions constituting the offense, and the rights of the accused.
specify its qualifying and aggravating circumstances.
If there is no designation of the offense, reference However, any amendment before plea, which
shall be made to the section or subsection of the downgrades the nature of the offense charged in or
statute punishing it. Sec. 8, Rule 110 excludes any accused from the complaint or
information, can be made only:
In Malto vs People, it was held that the failure to
designate the offense by the statue or to mention 1. Upon motion by the prosecutor,
specific provision penalizing the act or an erroneous 2. With notice to the offended party and
specification of the law violated does not vitiates the 3. With leave of court.
information if the facts alleged clearly receive the The court shall state its reasons in resolving the
facts constituting the crime. motion and copies of its order shall be furnished all
parties, especially the offended party.
5.2.7. Cause of the accusation
Substitution of the complaint or information
The acts or omissions complained of as constituting
the offense and the qualifying and aggravating A complaint or information may be substituted if it
circumstances must be stated in ordinary and concise appears at any time before judgment that a mistake
language and not necessarily in the language used in has been made in charging the proper offense.
REMEDIAL LAW REVIEWER Chapter V Criminal Procedure

In such case, the court shall dismiss the original 5.2.10. Venue of criminal actions
complaint for information once the new one charging
the proper offense is filed provided that the accused Subject to existing laws, the criminal action shall be
will not be placed in double jeopardy. instituted and tried in the court of the municipality or
territory where the offense was committed or where Pg.
any of its essential ingredients occurred. 158
Amendment Substitution
Where an offense is committed in a train, aircraft, or
1. Involve either
1. Necessarily other public or private vehicle while in the course of
formal and
involves a its trip
substantial
substantial
changes
change from The criminal action shall be instituted and tried in the
2. Amendment the original court of any municipality or territory where such
before plea has change. train, aircraft or other vehicle passed during such its
been entered can 2. Substitution of
trip, including the place of its departure and arrival.
be effected the
without leave of information
Where an offense is committed on board a vessel in
court must be with
leave of court the course of its voyage
3. When the
as the original
amendment is only information The criminal action shall be instituted and tried in the
as to form, there is has to be court of the first port of entry or of any municipality
no need for dismissed or territory where the vessel passed during such
another 3. Another voyage, subject to the generally accepted principles
preliminary preliminary
of international law.
investigation and investigation is
entailed and
the retaking of the Crimes committed outside the Philippines but
the accused
plea of the accused has to plead punishable under Article 2 of the Revised Penal Code
4. Refers to the same anew to the
offense charged in new The criminal action shall be cognizable by the court
the original information where the criminal action is first filed
information or to 4. This
presupposes 5.2.11. Intervention of offended party
an offense which is
that a new
necessarily information
included in the Where the civil action for recovery of civil liability is
involves
original charge. instituted in the criminal action pursuant to Rule 111,
different
offense which the offended party may intervene by counsel in the
does not prosecution of the offense.
include or is
not necessarily This is because the person convicted of a crime is also
included in the civilly liable.
original
charge, hence,
the accused
cannot claim
double
jeopardy.
REMEDIAL LAW REVIEWER Chapter V Criminal Procedure

5.3. PROSECUTION OF CIVIL ACTION (RULE After the criminal action has been commenced, the
111) separate civil action arising therefrom cannot be
instituted until final judgment has been entered in the
5.3.1. Rule on implied institution of civil action criminal action. Sec. 2 Rule 111
with criminal action Pg.
If the criminal action is filed after the said civil action 159

When a criminal action is instituted, the civil action has already been instituted
for the recovery of civil liability arising from the
offense charged shall be deemed instituted with the The latter shall be suspended in whatever stage it
criminal action unless the offended party waives the may be found before judgment on the merits. The
civil action, reserves the right to institute it separately suspension shall last until final judgment is rendered
or institutes the civil action prior to the criminal in the criminal action.
action. Sec. 1, Rule 111.
Consolidation of criminal action
When there is no implied institution of the civil
action: Nevertheless, before judgment on the merits is
rendered in the civil action, the same may, upon
a. When the offended party waives the civil motion of the offended party, be consolidated with
action the criminal action in the court trying the criminal
b. When the offended party reserves the right action.
to institute civil action separately
c. When the offended party institutes the civil Effect of the consolidation in the evidence already
action prior to criminal action. presented
Note the above rule has no application to
independent civil actions under Art. 32, 33, 34, and In case of consolidation, the evidence already
2176 of the Civil Code. adduced in the civil action shall be deemed
automatically reproduced in the criminal action
The reservation of the right to institute separately the without prejudice to the right of the prosecution to
civil action shall be made before the prosecution cross-examine the witnesses presented by the
starts presenting its evidence and under offended party in the criminal case and of the parties
circumstances affording the offended party a to present additional evidence. The consolidated
reasonable opportunity to make such reservation. criminal and civil actions shall be tried and decided
jointly.
Note there is no reservation of civil action in cases
under B.P. 22. Prescription of the civil action

5.3.2. When civil action may proceed


During the pendency of the criminal action, the
independently
running of the period of prescription of the civil action
which cannot be instituted separately or whose
Civil actions referred to in Art. 32, 33, 34, and 2176 of
proceeding has been suspended shall be tolled. (n)
the Civil Code shall remain separate, distinct, and
independent of any criminal prosecution which may
Effect of acquittal or the extinction of penal action
be based on the same act. Philippine Rabbit Bus Lines
on the civil action or civil liability
vs People.

5.3.3. When separate civil action is suspended


REMEDIAL LAW REVIEWER Chapter V Criminal Procedure

General rule: the extinction of the penal action does If the accused dies before arraignment, the case shall
not carry with it extinction of the civil action where: be dismissed without prejudice to any civil action the
offended party may file against the estate of the
a. The acquittal is based on reasonable doubt deceased. Sec. 4, Rule 111.
as only preponderance of evidence is Pg.
required 5.3.5. Prejudicial question 160
b. The court declares that the liability of the
accused is just civil A petition for suspension of the criminal action based
c. The civil liability of the accused does not upon the pendency of a prejudicial question in a civil
arise from or is not based upon the crime of action may be filed in the office of the prosecutor or
which the accused is acquitted. the court conducting the preliminary investigation.
However, the civil action based on delict shall be When the criminal action has been filed in court for
deemed extinguished if there is a finding in a final trial, the petition to suspend shall be filed in the same
judgment in the criminal action that the act or criminal action at any time before the prosecution
omission from which the civil liability may arise did rests Sec. 6, Rule 111
not exist.
Ratio to avoid two conflicting decisions in civil case
Effect of payment of civil liability and in the criminal case.

Payment of civil liability does not extinguish criminal The suspension does not include dismissal
liability.
The rule authorizing the suspension of the criminal
5.3.4. Effect of death of the accused or convict case does not prescribe the dismissal of the criminal
on civil action action. It only authorizes its suspension. The
suspension shall be made upon the filing of petition
The death of the accused after arraignment and of suspension. Yap vs Paras 205 SCRA 625
during the pendency of the criminal action shall
Elements of prejudicial question:
extinguish the civil liability arising from the delict.
However, the independent civil action instituted
The elements of a prejudicial question are:
under section 3 of this Rule or which thereafter is
instituted to enforce liability arising from other (a) the previously instituted civil action involves an
sources of obligation may be continued against the issue similar or intimately related to the issue raised
estate or legal representative of the accused after in the subsequent criminal action, and
proper substitution or against said estate, as the case
may be. The heirs of the accused may be substituted (b) the resolution of such issue determines whether
for the deceased without requiring the appointment or not the criminal action may proceed
of an executor or administrator and the court may
appoint a guardian ad litem for the minor heirs. Sec. 5.3.6. Rule on filing fees in civil action deemed
4, Rule 111. instituted with the criminal action

The court shall forthwith order said legal Filing fees apply when the damages are being claimed
representative or representatives to appear and be by the offended party.
substituted within a period of thirty (30) days from
notice. Upon filing of the aforesaid joint criminal and civil
actions, the offended party shall pay in full the filing
fees based on the amount of the check involved,
REMEDIAL LAW REVIEWER Chapter V Criminal Procedure

which shall be considered as the actual damages 5.4.2. Purposes of preliminary investigation
claimed.
a. To avoid indiscriminate filing of criminal
Where the complaint or information also seeks to charges
recover liquidated, moral, nominal, temperate or b. To declog court dockets
Pg.
exemplary damages, the offended party shall pay 5.4.3. Who may conduct determination of 161
additional filing fees based on the amounts alleged existence of probable cause
therein.
The following may conduct preliminary
If the amounts are not so alleged but any of these investigations:
damages are subsequently awarded by the court, the
filing fees based on the amount awarded shall (a) Provincial or City Prosecutors and their assistants;
constitute a first lien on the judgment. Sec. 1[b] Rule
111. (b) Judges of the Municipal Trial Courts and Municipal
Circuit Trial Courts;

(c) National and Regional State Prosecutors; and


5.4. PRELIMINARY INVESTIGATION (RULE
(d) Other officers as may be authorized by law.
112)

Preliminary investigation - is an inquiry or Their authority to conduct preliminary investigations


proceeding to determine whether there is sufficient shall include all crimes cognizable by the proper court
ground to engender a well-founded belief that a in their respective territorial jurisdictions.
crime has been committed and the respondent is
Probable cause such facts and circumstances as
probably guilty thereof, and should be held for trial.
would lead a person of ordinary caution and
Sec. 1 Rule 112
prudence to entertain a honest and strong suspicion
Scope that the person charged is guilty of the crime subject
of the investigation.
Except as provided in section 7 of this Rule, a
preliminary investigation is required to be conducted It is not a determination of guilt, but rather to
before the filing of a complaint or information for an determine whether the case should proceed to trial.
offense where the penalty prescribed by law is at
least four (4) years, two (2) months and one (1) day The preliminary investigation shall be conducted in
without regard to the fine. the following manner:

5.4.1. Nature of right a. The complaint shall state the address of the
respondent and shall be accompanied by the
It is a mere statutory right and not a constitutional affidavits of the complainant and his witnesses, as
right. However, it becomes a component of due well as other supporting documents to establish
process in criminal justice. Domoral vs probable cause. They shall be in such number of
Sandiganbayan, 117 SCRA 354 copies as there are respondents, plus two (2) copies
for the official file.
The right to preliminary investigation may be waived
for failure to invoke the right prior or at the time of The affidavits shall be subscribed and sworn to before
plea. People vs Gomez, 117 SCRA73 any prosecutor or government official authorized to
REMEDIAL LAW REVIEWER Chapter V Criminal Procedure

administer oath, or, in their absence or unavailability, If the respondent cannot be subpoenaed
before a notary public, each of who must certify that
he personally examined the affiants and that he is If the respondent cannot be subpoenaed, or if
satisfied that they voluntarily executed and subpoenaed, does not submit counter-affidavits
understood their affidavits. within the ten (10) day period, the investigating Pg.
officer shall resolve the complaint based on the 162
b. Within ten (10) days after the filing of the evidence presented by the complainant.
complaint, the investigating officer shall either
dismiss it if he finds no ground to continue with the Conduct of preliminary hearing
investigation, or issue a subpoena to the respondent
attaching to it a copy of the complaint and its The investigating officer may set a hearing if there are
supporting affidavits and documents. facts and issues to be clarified from a party or a
witness.
Right of the defendant to examine
The parties can be present at the hearing but without
The respondent shall have the right to examine the the right to examine or cross-examine. They may,
evidence submitted by the complainant which he may however, submit to the investigating officer
not have been furnished and to copy them at his questions which may be asked to the party or witness
expense. If the evidence is voluminous, the concerned.
complainant may be required to specify those which
he intends to present against the respondent, and The hearing shall be held within ten (10) days from
these shall be made available for examination or submission of the counter-affidavits and other
copying by the respondent at his expense. documents or from the expiration of the period for
their submission. It shall be terminated within five (5)
Objects as evidence need not be furnished a party but days.
shall be made available for examination, copying, or
photographing at the expense of the requesting (f) Within ten (10) days after the investigation, the
party. investigating officer shall determine whether or not
there is sufficient ground to hold the respondent for
Respondent to file counter affidavit trial. (3a)

Within ten (10) days from receipt of the subpoena 5.4.4. Resolution of investigation prosecutor
with the complaint and supporting affidavits and
documents, the respondent shall submit his counter- If the investigating prosecutor finds cause to hold the
affidavit and that of his witnesses and other respondent for trial, he shall prepare the resolution
supporting documents relied upon for his defense. and information.
The counter-affidavits shall be subscribed and sworn
to and certified as provided in paragraph (a) of this He shall certify under oath in the information:
section, with copies thereof furnished by him to the
complainant. The respondent shall not be allowed to that he, or as shown by the record, an authorized
file a motion to dismiss in lieu of a counter-affidavit. officer, has personally examined the complainant and
his witnesses;
a. that there is reasonable ground to believe
that a crime has been committed and that
the accused is probably guilty thereof;
REMEDIAL LAW REVIEWER Chapter V Criminal Procedure

b. that the accused was informed of the release of an accused who is detained if no probable
complaint and of the evidence submitted cause is found against him
against him; and that he was given an
opportunity to submit controverting 5.4.6. When warrant of arrest may issue
evidence. Pg.
Otherwise, he shall recommend the dismissal of the By the Regional Trial Court. 163
complaint.
Within ten (10) days from the filing of the complaint
or information, the judge shall personally evaluate
5.4.5. Review
the resolution of the prosecutor and its supporting
evidence.
Within ten (10) days after the preliminary
investigation, the investigating judge shall transmit
Judicial determination of probable cause
the resolution of the case to the provincial or city
prosecutor, or to the Ombudsman or his deputy in
He may immediately dismiss the case if the evidence
cases of offenses cognizable by the Sandiganbayan in
on record clearly fails to establish probable cause. If
the exercise of its original jurisdiction, for appropriate
he finds probable cause, he shall issue a warrant of
action.
arrest, or a commitment order if the accused has
already been arrested pursuant to a warrant issued
The resolution shall state the findings of facts and the
by the judge who conducted the preliminary
law supporting his action, together with the record of
investigation or when the complaint or information
the case which shall include:
was filed pursuant to section 7 of this Rule.

(a) the warrant, if the arrest is by virtue of a warrant;


In case of doubt by the judge; order of presentation
of additional evidence
(b) the affidavits, counter-affidavits and other
supporting evidence of the parties; In case of doubt on the existence of probable cause,
the judge may order the prosecutor to present
(c) the undertaking or bail of the accused and the additional evidence within five (5) days from notice
order for his release; and the issue must be resolved by the court within
thirty (30) days from the filing of the complaint of
(d) the transcripts of the proceedings during the information
preliminary investigation; and
By the municipal trial court
(e) the order of cancellation of his bail bond, if the
resolution is for the dismissal of the complaint. When required pursuant to the second paragraph of
section 11086 of this Rule, the preliminary
Within thirty (30) days from receipt of the records, investigation of cases falling under the original
the provincial or city prosecutor, or the Ombudsman jurisdiction of the Metropolitan Trial Court, Municipal
or his deputy, as the case may be, shall review the Trial Court in Cities, Municipal Trial Court, or
resolution of the investigating judge on the existence Municipal Circuit Trial Court shall be conducted by the
of probable cause. prosecutor. The procedure for the issuance of a
warrant of arrest by the judge shall be governed by
Their ruling shall expressly and clearly state the facts paragraph (a)1087 of this section.
and the law on which it is based and the parties shall
be furnished with copies thereof. They shall order the
REMEDIAL LAW REVIEWER Chapter V Criminal Procedure

5.4.7. Cases not requiring a preliminary b. If the case has been conducted, the accused
investigation may within five (5) days from the time he
learns of its filing ask for a preliminary
If filed with the prosecutor. investigation. Sec. 3, 2000 NPS Rule on
Appeal, DOJ Circular No. 70 Pg.
If the complaint is filed directly with the prosecutor The five - day period to file the motion for preliminary 164
involving an offense punishable by imprisonment of investigation is mandatory, and an accused is entitled
less four (4) years, two (2) months and one (1) day, to ask for preliminary investigation by filing the
the procedure outlined in section 3(a) of this Rule motion within the said period
shall be observed. The prosecutor shall act on the
Appeal to the Secretary of Justice, filing of petition
complaint based on the affidavits and other
or review
supporting documents submitted by the complainant
within ten (10) days from its filing. The appeal shall be taken within 15 days from the
receipt of the assailed decision. If motion for
If filed with the Municipal Trial Court. reconsideration has been filed within 15 days from
the receipt, the appeal shall be taken within 15 days
If the complaint or information is filed directly with from the receipt of the denial. Only one motion for
the Municipal Trial Court or Municipal Circuit Trial reconsideration is allowed.
Court for an offense covered by this section, the
procedure in section 3(a) of this Rule shall be An appeal is made by filing a petition for review with
observed. If within ten (10) days after the filing of the the Office of the Secretary, Department of Justice.
complaint or information, the judge finds no probable
cause after personally evaluating the evidence, or The Secretary of Justice may reverse, affirm or modify
the said resolution. He may also motu propio or upon
after personally examining in writing and under oath
motion dismiss the review on the following grounds:
the complainant and his witnesses in the form of
searching question and answers, he shall dismiss the a. The appeal is filed beyond prescription
same. He may, however, require the submission of b. The procedure under D.C. No. 70 was not
additional evidence, within ten (10) days from notice, complied with
to determine further the existence of probable cause. c. There is no showing of reversible error, or
If the judge still finds no probable cause despite the that the accused was already arraigned
additional evidence, he shall, within ten (10) days d. The appealed decision is in interlocutory in
from its submission or expiration of said period, nature, except when it suspends the
dismiss the case. When he finds probable cause, he proceedings based on the alleged existence
shall issue a warrant of arrest, or a commitment order of prejudicial question
if the accused had already been arrested, and hold e. The offense is already prescribed
him for trial. However, if the judge is satisfied that f. Other grounds for dismissal, see. Sec. 13, of
there is no necessity for placing the accused under D.C. 70
custody, he may issue summons instead of a warrant In assailing the adverse decision of the Secretary of
of arrest. Justice, use Petition for Certiorari under Rule 65.
Bautista vs CA, July 6, 2001
5.4.8. Remedies of accused if there was no
preliminary investigation Note, if any case the information is already filed in
court while the appeal in Secretary of Justice is
a. To hold in abeyance the proceedings and pending, the latter proceedings will already be moot
order the prosecutor to hold preliminary and academic.
investigation.
REMEDIAL LAW REVIEWER Chapter V Criminal Procedure

5.4.9. Inquest In flagrante delicto,

It is a summary investigation conducted by a public (a) When, in his presence, the person to be arrested
prosecutor in criminal cases involving persons has committed, is actually committing, or is
arrested and detained without the benefit of a attempting to commit an offense; Pg.
warrant of arrest issued by the court for the purpose 165
of determining whether or not said persons should Requisites for in flagrante delicto
remain under custody and correspondingly be 1. The person to be arrested must execute an
charged in court. over act indicating that he has just
committed, is actually committing, or is
Such proceedings must terminate within the period
attempting to commit a crime
prescribed under Art. 125 of the Revised Penal Code
2. Such act is done in the presence or within
unless the accused opted for preliminary
the view of arresting officer.
investigation, in which case, he must sign a waiver for
Hot pursuit
the Art. 125 of the RPC.

(b) When an offense has just been committed, and he


has probable cause to believe based on personal
knowledge of facts or circumstances that the person
5.5. ARREST (RULE 113) to be arrested has committed it; and;

5.5.1. Arrest, how made Requisites for hot pursuit:

Arrest - the taking of a person into custody in order 1. the offense has just been committed
that he may be bound to answer for the commission 2. The person making the arrest has personal
of an offense. Sec. 1, Rule 113. knowledge of the facts indicating that the
person to be arrested has just committed.
An arrest is made by an actual restraint of a person to
be arrested, or by his submission to the custody of the Escapee; fugitive from justice
person making the arrest. Sec. 2, Rule 113.
(c) When the person to be arrested is a prisoner who
No violence or unnecessary force shall be used in has escaped from a penal establishment or place
making an arrest. The person arrested shall not be where he is serving final judgment or is temporarily
subject to a greater restraint than is necessary for his confined while his case is pending, or has escaped
detention while being transferred from one confinement to
another.
Warrant of arrest - is a legal process issued by
competent authority directing the arrest of a person
Flight while on bail exception
or persons upon grounds stated therein. It usually
directed to a regular officer of the law, but
(d). An accused released on bail may be re-arrested
occasionally, it is issued to a private person named in
without the necessity of a warrant if he attempts to
it.
depart from the Philippines without permission of
the court where the case is pending. Sec. 23, Rule
5.5.2. Arrest without warrant, when lawful
114
A peace officer or a private person may, without a
warrant, arrest a person:
REMEDIAL LAW REVIEWER Chapter V Criminal Procedure

5.5.3. Method of arrest 4. The right to be visited by the immediate


members of his family, by his counsel, or by
a) By officer with warrant non-governmental organization, national or
international.
When making an arrest by virtue of a warrant, the
5.5.4. Requisites of a valid warrant of arrest Pg.
officer shall inform the person to be arrested of the 166
cause of the arrest and of the fact that a warrant has The head of the office to whom the warrant of arrest
been issued for his arrest, Sec. 7, Rule 113 was delivered for execution shall cause the warrant to
be executed within ten (10) days from its receipt.
Exception: when he flees or forcibly resists before the
officer has opportunity to so inform him, or when the Within ten (10) days after the expiration of the
giving of such information will imperil the arrest. period, the officer to whom it was assigned for
execution shall make a report to the judge who issued
The officer need not have the warrant in his
the warrant. In case of his failure to execute the
possession at the time of the arrest but after the
warrant, he shall state the reasons therefor.
arrest, if the person arrested so requires, the warrant
shall be shown to him as soon as practicable It shall be the duty of the officer executing the
warrant to arrest the accused and to deliver him to
b) By officer without warrant
the nearest police station or jail without unnecessary
delay.
When making an arrest without a warrant, the officer
shall inform the person to be arrested of his authority
Waiver of illegality of the arrest; effect
and the cause of the arrest, unless the latter is either
engaged in the commission of an offense, is pursued A warrantless arrest is not jurisdictional defect and
immediately after its commission, has escaped, flees any objection to it is waived when the person
or forcibly resists before the officer has opportunity arrested submits to arraignment without any
so to inform him, or when the giving of such objections.
information will imperil the arrest. Sec. 8, Rule 113
If the appellants are questioning their arrest for the
c) By private person first time on appeal, they are, therefore, deemed to
have waived their right to the constitutional
When making an arrest, a private person shall inform
protection against illegal arrests and searches. People
the person to be arrested of the intention to arrest
vs Aminola, GR 178062
him and cause of the arrest, unless the latter is either
engaged in the commission of an offense, is pursued Time of making an arrest
immediately after its commission, or has escaped,
flees, or forcibly resists before the person making the The arrest may be made on any day and at any time
arrest has opportunity to so inform him, or when the of the day or night.
giving of such information will imperil the arrest Sec.
9, Rule 113 Persons not subject to arrest

Rights of the person arrested (RA 7348): According to Sec. 11, Article VI, of the 1987
Constitution provides that a senator or member of
1. The right to be assisted by counsel at all
the House of Representatives, shall, in all offenses
times
punishable by not more than six years of
2. The right to remain silent
imprisonment, be privileged while the congress is in
3. The right to be informed of the above rights
session.
REMEDIAL LAW REVIEWER Chapter V Criminal Procedure

But this does not apply if the congress is not in Forms of bail
session.
Corporate surety this is bail furnished by the
5.5.5. Determination of probable cause for issuance corporation.
of warrant of arrest Pg.
Any domestic or foreign corporation, licensed as a 167
It is constitutionally mandated that a warrant of surety in accordance with law and currently
arrest shall issue only upon finding of probable cause authorized to act as such, may provide bail by a bond
personally determined by the judge after subscribed jointly by the accused and an officer of the
examination under oath or affirmation of the corporation duly authorized by its board of directors.
complainant and the witness he/she may produce,
and particular describing the person to be seized. Property bond it is an undertaking constituted as
Sec. 2, Art. III, of the 1987 Constitution. lien on the real property given as security for the
amount of bail.
5.5.6. Distinguish probable cause of fiscal from
that of a judge A property bond is an undertaking constituted as lien
on the real property given as security for the amount
The determination of probable cause for purposes of of the bail. Within ten (10) days after the approval of
issuing the warrant of arrest is made by the judge. It the bond, the accused shall cause the annotation of
is a judicial function. the lien on the certificate of title on file with the
Register of Deeds if the land is registered, or if
The preliminary investigation proper, whether or not unregistered, in the Registration Book on the space
there is a reasonable ground to believe that the provided therefor, in the Registry of Deeds for the
accused is guilty of the offense charged is the function province or city where the land lies, and on the
of investigating prosecutor. It is executive function. corresponding tax declaration in the office of the
provincial, city and municipal assessor concerned.
Sec. 11, Rule 114.

5.6. BAIL (RULE 114) Within the same period, the accused shall submit to
the court his compliance and his failure to do so shall
5.6.1. Nature be sufficient cause for the cancellation of the
property bond and his re-arrest and detention.
Bail - is the security given for the release of a person
in custody of the law, furnished by him or a The qualification of sureties in a property bond shall
bondsman, to guarantee his appearance before any be as follows:
court as required under the conditions hereinafter
specified. Bail may be given in the form of corporate (a) Each must be a resident owner of real estate
surety, property bond, cash deposit, or recognizance. within the Philippines;
Sec. 1, Rule 114
(b) Where there is only one surety, his real estate
The righto bail is a constitutional right. It is personal must be worth at least the amount of the
in nature, and is therefore, waivable. A bail undertaking;
application does not only involve the right of the
accused to temporary liberty, but likewise the right of (c) If there are two or more sureties, each may justify
the State to protect the people an the peace of the in an amount less than that expressed in the
community from dangerous elements. undertaking but the aggregate of the justified sums
REMEDIAL LAW REVIEWER Chapter V Criminal Procedure

must be equivalent to the whole amount of bail 5.6.3. When a matter of discretion
demanded. Sec. 12, Rule 114.
Upon conviction by the Regional Trial Court of an
Cash deposit the bail may also be in the form of offense not punishable by death, reclusion perpetua,
cash. or life imprisonment, admission to bail is Pg.
discretionary. 168
The accused or any person acting in his behalf may
deposit in cash with the nearest collector or internal The application for bail may be filed and acted upon
revenue or provincial, city, or municipal treasurer the by the trial court despite the filing of a notice of
amount of bail fixed by the court, or recommended appeal, provided it has not transmitted the original
by the prosecutor who investigated or filed the case. record to the appellate court.
Upon submission of a proper certificate of deposit
and a written undertaking showing compliance with If the decision of the trial court convicting the
the requirements of section 2 of this Rule, the accused changed the nature of the offense from
accused shall be discharged from custody. The money non-bailable to bailable
deposited shall be considered as bail and applied to
the payment of fine and costs while the excess, if any, The application for bail can only be filed with and
shall be returned to the accused or to whoever made resolved by the appellate court.
the deposit
If the penalty imposed by the trial court is
Recognizance this I san obligation of record entered imprisonment exceeding six (6) years
into before some court or magistrate duly authorized
to take it, with the condition to do some particular The accused shall be denied bail, or his bail shall be
act, the most usual condition in criminal case being cancelled upon a showing by the prosecution, with
appearance of the accused in trial. notice to the accused, of the following or other similar
circumstances:
Whenever allowed by law or these Rules, the court
may release a person in custody to his own (a) That he is a recidivist, quasi-recidivist, or habitual
recognizance or that of a responsible person Sec. 14, delinquent, or has committed the crime aggravated
Rule 114. by the circumstance of reiteration;

5.6.2. When a matter of right; exceptions (b) That he has previously escaped from legal
confinement, evaded sentence, or violated the
All persons in custody shall be admitted to bail as a conditions of his bail without valid justification;
matter of right, with sufficient sureties, or released on
recognize as prescribed by law or this Rule (c) That he committed the offense while under
probation, parole, or conditional pardon;
a. before or after conviction by the Metropolitan Trial
Court, Municipal Trial Court, Municipal Trial Court in (d) That the circumstances of his case indicate the
Cities, or Municipal Circuit Trial Court, and probability of flight if released on bail; or

b. before conviction by the Regional Trial Court of an


(e) That there is undue risk that he may commit
offense not punishable by death, reclusion perpetua,
another crime during the pendency of the appeal.
or life imprisonment.
The appellate court may, motu proprio or on motion
of any party, review the resolution of the Regional
REMEDIAL LAW REVIEWER Chapter V Criminal Procedure

Trial Court after notice to the adverse party in either f. Weight of the evidence against the accused;
case. g. Probability of the accused appearing at the
trial;
5.6.4. Hearing of application for bail in capital h. Forfeiture of other bail;
offenses i. The fact that accused was a fugitive from Pg.
justice when arrested; and 169
Capital offense - is an offense which, under the law j. Pendency of other cases where the accused
existing at the time of its commission and of the is on bail.
application for admission to bail, may be punished Excessive bail shall not be required.
with death.
5.6.6. Bail when not required
No person charged with a capital offense, or an
offense punishable by reclusion perpetua or life No bail shall be required when the law or these Rules
imprisonment, shall be admitted to bail when so provide.
evidence of guilt is strong, regardless of the stage of
the criminal prosecution. When a person has been in custody for a period equal
to or more than the possible maximum imprisonment
However, the accused may apply for a bail by proving prescribe for the offense charged, he shall be
that the evidence is not strong. released immediately, without prejudice to the
continuation of the trial or the proceedings on appeal.
Burden of proof in bail application
If the maximum penalty to which the accused may be
sentenced is destierro, he shall be released after
At the hearing of an application for bail filed by a
thirty (30) days of preventive imprisonment.
person who is in custody for the commission of an
offense punishable by death, reclusion perpetua, or
A person in custody for a period equal to or more than
life imprisonment, the prosecution has the burden of
the minimum of the principal penalty prescribed for
showing that evidence of guilt is strong. The evidence
the offense charged, without application of the
presented during the bail hearing shall be considered
Indeterminate Sentence Law or any modifying
automatically reproduced at the trial, but upon
circumstance, shall be released on a reduced bail or
motion of either party, the court may recall any
on his own recognizance, at the discretion of the
witness for additional examination unless the latter is
court.
dead, outside the Philippines, or otherwise unable to
testify. Sec. 8, Rule 114
5.6.7. Increase or reduction of bail
5.6.5. Guidelines in fixing amount of bail
After the accused is admitted to bail, the court may,
upon good cause, either increase or reduce its
The judge who issued the warrant or granted the
amount. When increased, the accused may be
application shall fix a reasonable amount of bail
committed to custody if he does not give bail in the
considering primarily, but not limited to, the
increased amount within a reasonable period. Sec.
following factors:
20, Rule 114

a. Financial ability of the accused to give bail; An accused held to answer a